In short, employees don’t have to work on a public holiday.
However, an employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse a request to work if they have reasonable grounds.
Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday.
The following need to be taken into account when deciding if a request is reasonable:
- the employee’s personal circumstances, (eg. family responsibilities)
- whether the employee will get more pay (eg. penalty rates)
- the needs of the workplace
- the type of work the employee does
- whether the employee’s salary includes work on a public holiday
- whether the employee is full-time, part-time, casual or a shiftworker
- how much notice the employee was given about working
- the amount of notice the employee gives that they refuse to work.
For example, businesses such as restaurants that remain open on public holidays may require that employees attend work. These employees would fall under an Award that allows for an increased rate to compensate workers who are required to come in.
When requesting that an employee work on a public holiday, employers need to consider all relevant circumstances, including the ones listed above.
In terms of an employee’s entitlement to extra pay. An employer is obliged to pay an employee at least their base rate.
If an employee does work on a public holiday the National Employment Standards (NES) does not require the employer to pay penalty rates or give days off in lieu if employees work on public holidays.
An employee may be entitled to an increased rate if they fall under an award, enterprise agreement or othere registered agreement that provides entitlements above an employee’s base rate.