Under the Fair Work Act 2009 (Cth) National Employment Standards (NES), an employee is entitled to be absent from their employment on a day or part-day that is a public holiday where the employee is based for work purposes.

An employer may request an employee to work on a public holiday if the request is reasonable. The NES sets out the factors that must be taken into account in determining whether the request is reasonable.

In CFMMEU v OS MCAP Pty Ltd (2022), an employer providing production services to a mining company and was obliged to operate on Christmas Day and Boxing Day. The employer requested its employees work on those days.

The union representing employees working for a mining contractor tried to argue that the word ‘request’ means that even if the employer’s request is reasonable, it cannot operate as a requirement for the employee to work the holiday.

The Court rejected the union’s argument and ruled that if the request was reasonable, it operated as a requirement on the employee to work the public holiday.

The Court stated that the NES creates a prima facie entitlement for employees to be absent from work on a public holiday. It is necessary for the employer to demonstrate adequate reasons why it was reasonable to require employees to work on a public holiday. A strong justification is required for the requirement that employees work on Christmas Day and Boxing Day. The Court considered in this case the request was reasonable because:

• the employer had demonstrated an operational need for its employees to work on public holidays, including Christmas Day and Boxing Day;
• the employees were given notice before they accepted employment of the employer’s expectation for them to work on public holidays falling within their ordinary rosters;
• the employees were specifically informed and reminded after they commenced employment that they were required to work on Christmas Day and Boxing Day;
• the employees were paid an annualised salary, the level of which was adequate to reflect penalty rates payable under the relevant modern award for working on public holidays falling within their rosters, including Christmas Day and Boxing Day;
• given the employer was required to operate on Christmas Day and Boxing Day, and the employees’ salaries included components for penalties for working on those days, it would not be reasonable to expect the employer to have to pay additional amounts to volunteers or labour hire employees to work on those days; and
• the employer allowed employees who demonstrated special personal circumstances to have leave on Christmas Day and Boxing Day.

Learn more about your obligations and entitlements in relation to public holidays in the Employment Law Practical Handbook chapter, Public Holidays. Look out for this chapter’s next update, which is coming this month!