Your rights to work (or not to work) public holidays

Date: 04/04/2023

The Full Court recently handed down a decision that made your rights when being rostered to work a public holiday crystal clear.

The National Employment Standards, which applies to all workers in Australia, sets out rules for when your employer wants you to work on a public holiday. The rules include that your employer must make a reasonable request that you work on a public holiday. The request must leave you with a choice as to whether to work or not, subject to specific criteria.

If you work in an all-year-round industry, it will be necessary that employers roster workers onto work public holidays, but your employer will need to make a request of you before rostering you on and consider your reasons if you decline to work on the public holidays. If your employer does not make a request, you are entitled to the public holiday off.

The following criteria must be considered when deciding whether or not you should be rostered to work: 

1. The nature of the industry,
2. Your personal circumstances, including family responsibilities,
3. Whether you would expect that you might be asked to work,
4. Whether you receive overtime, penalty rate or other compensation,
5. Whether you are full-time, part-time or casual,
6. The amount of notice given by your employer in requesting your work,
7. The amount of notice you might provide in declining to work, and
8. Any other factors.

Once your employers consider those factors, they may require you to work. 

What if my EBA or contract says I must work a public holiday?

Employers cannot contract out of the National Employment Standards. The terms of your EBA or contract are relevant factors in considering the reasonableness of being asked to work a public holiday. Even if your EBA or contract includes such a provision, your employer must still make the request and consider your reasons if you decline to work.

This Court decision is a win for workers and will ensure employers engage in a conversation before rostering you for a public holiday. By law, they must take into consideration your circumstances. The flow-on effect of the decision means better engagement, improved rostering for public holidays and better chances that those that want to work a public holiday can and those that don’t – won’t.

Not an ASU member? Join today. If you require any support or additional information, please contact your local ASU organiser or the ASU office on (03)9342 3300 or at [email protected]