Can an employee be forced to work on Australia Day (or any other public holiday) and what wages apply if they do or do not work?

Can an employee be forced to work on Australia Day (or any other public holiday) and what wages apply if they do or do not work?

If you’re open for business on Australia Day, you’re probably knee-deep finalising work rosters. Chances are, you’ve encountered resistance from some workers who’d rather be having a BBQ at the beach than at work.

Many of our clients ask two key questions whenever a public holiday is approaching.

  1. can you force them to work on a public holiday?
  2. how is regular overtime paid if it occurs on Australia Day (or any other public holiday)?

Below are answers to these questions that provide insights on how you can manage situations which may arise in relation to your employees working on public holidays.

What does the Fair Work Act say?

As an employer, you don’t have a unilateral right to direct an employee to work on a public holiday. The Fair Work Act 2009 (s114) says you can ask an employee to work on a public holiday if the request is reasonable. On the flip side, an employee must give a satisfactory reason for refusing to work. The Act lists several factors you should consider, although their relevance will vary according to individual circumstances.

What is ‘reasonable’?

In determining whether requests or refusals are reasonable, the following must be considered:

  • The nature of your workplace and the nature of an employee’s work
  •  an employee's personal circumstances, including family responsibilities
  • whether an employee could reasonably expect they would be asked to work on the public holiday
  • whether an employee is entitled to receive overtime, penalty payments or other compensation that reflects an expectation to work on public holidays
  • the type of employment (e.g. full-time, part-time, casual, or shift work)
  • the amount of notice given by an employer when making the request
  • the amount of notice given by an employee when refusing the request.

In some cases, a single factor will be of great importance and outweigh all others. For example, the Explanatory Memorandum to the Fair Work Bill 2008 (para #449-454) states ‘where someone is employed in a workplace that requires a certain level of staffing on a public holiday – e.g.  hospital – and has been warned of the likelihood of working public holidays, a request to work may be considered reasonable.

On the other hand, an employee's refusal to work on a public holiday may be reasonable where, for instance, they notified their employer in advance they could not work because of family commitments.

Reason for refusal

Employees must explain their reasons for refusing to work on a public holiday. The Fair Work Commission has held that even if employees have good reasons for refusing to work on a public holiday, if those reasons aren’t explained to you, their refusal to work will not be reasonable. However, an employee’s refusal to work a public holiday would not, of itself, be a valid reason for dismissal. See: Pietraszek v Transpacific Industries Pty Ltd t/a Transpacific Cleanaway [2011] FWA 3698.

What employers should consider

To sum up, the important factors regarding the reasonableness of an employer’s request to work on a public holiday will depend on:

  • the operational requirements of the business
  • type of work performed by the employee – e.g. maintenance employee
  • whether employee was advised at recruitment they may be required to work public holidays
  • how much notice the employer gave regarding work on the public holiday.  

While you do not have a unilateral right to direct an employee to work on a public holiday, you can make ‘reasonable’ requests. Employees must provide a satisfactory reason for refusing to work, and employers should consult with employees before holidays to avoid any staffing issues.

How is regular overtime paid if it occurs on Australia Day (or any other public holiday)

Australia Day is next week and we are often asked questions about two different scenarios:

  1. can employee can be forced to work on Australia Day; and
  2. if an employee often works overtime and gets paid for it on normal working days, what wages are paid if the employee does not work when usually they would have on a public holiday

Most Modern Awards refer to the National Employment Standards in relation to public holidays. This means the relevant provisions in the Fair Work Act would apply.

Employees would NOT be entitled to payment for regular overtime usually performed on the day the public holiday falls, where no work is performed.

Under the Fair Work Act (s116), an employee is to be paid at their base rate of pay for a specified public holiday. ‘Base rate of pay’ is defined as the rate of pay for an employee's ordinary hours of work, but not including incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts.

This means overtime is not considered part of an employee’s ‘base rate of pay’ when paying an employee who is absent on a designated public holiday.

Modern awards

While it is possible for a modern award to contain terms that provide a more beneficial definition of ordinary pay when an employee is absent on a public holiday and where the award is silent on this point, the provisions relating to payment for a public holiday prescribed by the Fair Work Act apply.

Regular overtime is not payable when an employee is absent from work due to a public holiday as it is not included in an employee’s base rate of pay.

It can be a daunting prospect for businesses and managers to discuss public holiday rosters and work requests, not only to know where to start, but how to manage human resources entirely.

Source: Workplace Info 13.01.2021

Akyra can provide you with a clear pathway forward to ensure you are compliant with the Fair Work Act.  Every industry and business will have unique requirements and for further guidance or advice on Human Resource Management, Contact us now to book a time to discuss your areas of potential HR concern; thereafter we will provide a way forward where it might be needed.

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