article by www.hradvanceprofessionals.com.au
A section of the National Employment Standards (NES) sets out the rules about working on public holidays. The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract.
The NES give employees the right to reasonably refuse to work on a public holiday, so the employer is not entitled to direct an employee to work on a public holiday.
The NES also protect employees from adverse action for reasonably refusing to work on a public holiday. That means the employer can’t dismiss them or disadvantage them in their employment, in retribution for their refusal.
That said, the employer can request employees – as against directing them – to work on public holidays.
It’s important to understand what are considered to be reasonable grounds for requesting or refusing to work on a public holiday. To decide whether a request – or a refusal – to work on a public holiday is reasonable, there are a number of things you need to take into account.
From the employer’s perspective, of course, the core of a reasonable request concerns the nature of the workplace, including its operational requirements, and the nature of the work carried out by the worker.
However, the employer also needs to consider the employee’s personal circumstances, including family responsibilities; whether the employee could reasonably expect that they might be asked to work on the public holiday; and whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday.
Other matters that need to be taken into account are the type of employment (full-time, part-time, casual or shiftwork), and the amount of notice in advance you can give the worker when making the request. This is also relevant to whether an employee’s refusal to work on a public holiday – how much notice they’re given beforehand. In general, a worker would have more grounds for refusing if the request was made at the last minute, the day before the public holiday.
Any other relevant matter also needs to be considered when deciding whether a request or a refusal is reasonable. With this in mind, it’s always a good idea to check any applicable enterprise agreement and the underlying award, if there’s no enterprise agreement, as well as the employee’s contract of employment.
And remember, all four days of the Easter weekend are not necessarily public holidays – in Tasmania and Western Australia the Saturday and Sunday are not declared to be public holidays; and in South Australia, Easter Sunday is not a public holiday.
If you need advice, please contact our workplace relations advice team on 1300 391 426.
Image by Freepik.com