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Can you force someone to work on Australia Day?

What does the Fair Work Act say?
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Can you force someone to work on Australia Day?

Can you force someone to work on Australia Day?

13 January 2021

By Marise Donnolley

While many of us enjoy a barbie and a beer on Australia Day, others will be hard at work. But what if your employees refuse to play ball?

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 tossing thongs than toiling at work. The question is: can you force them to work on a public holiday?


What does the Fair Work Act say?

Employers 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 an employer 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 that where someone is employed in a workplace that requires a certain level of staffing on a public holiday, such as a 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 their employer 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
  • the type of work performed by the employee, such as a maintenance employee
  • whether the employee was advised at recruitment that they may be required to work public holidays
  • how much notice the employer gave regarding work on the public holiday.

The bottom line: While an employer does not have a unilateral right to direct an employee to work on a public holiday, they 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.

This was first published on Business Australia.

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