Can employees refuse to work on public holidays?

By Brihony Tulloch on March 9th, 2018


Easter is just around the corner, which means an extended long weekend for many workers. But if you work in retail, healthcare or hospitality, it could be one of your busiest times of the year. So if you need you need your employees to work through – can they say no?

The simple fact is, you may request an employee to work on a public holiday, but the employee has the right to refuse your request if they have reasonable grounds for doing so.

What counts as reasonable grounds?

Take the following things into account when establishing whether your request for an employee to work on a public holiday is reasonable, and whether the employee has reasonable grounds for refusing to meet this request:

  1. The nature of the work performed by the employee, e.g. does the particular task really need to be performed on the holiday, or can it wait until the following working day?
  2. The type of employment, e.g. full-time, part-time or casual (generally there is more expectation for a casual employee to be required to work on public holidays because of the nature of the employment).
  3. The nature of your workplace or business (including its operational requirements), e.g. are you a small business that would need to shut down if the employee did not attend work?
  4. The employee’s personal circumstances, including family responsibilities, e.g. does the employee have children who would need to be cared for on that day?
  5. Whether the employee is entitled to additional remuneration or other benefits because of working on the public holiday, e.g. through an enterprise agreement.
  6. Whether the employee has acknowledged or could reasonably expect you to require them to work on a public holiday (or particular public holidays).
  7. The amount of notice you gave the employee so they could organise any necessary arrangements, such as childcare, to be able to work on that day.
  8. The amount of notice the employee gave you before refusing the request, e.g. was there time for you to organise a replacement to cover their shift?

What are your legal rights?

You will be in breach of the Fair Work Act (FW Act) general protections provisions if you take adverse action against an employee because they refuse to work a public holiday where:

  • your request for the employee to work is unreasonable; and/o
  • their refusal to work is reasonable.

Furthermore, if you breach the general protections, a court may impose a penalty of up to $12,600 if you are an individual, or up to $63,000 if you are a body corporate. The court can also order compensation and make any other orders it considers necessary to stop the conduct or to remedy its effects.

So it’s vital you respond cautiously if an employee refuses to meet your requirement to work on a public holiday.

Did you find this information helpful? Check out the updated Public Holidays chapter in the Employment Law Practical Handbook.

It’s a comprehensive and easy to understand guide penned by employment law specialists from Holding Redlich. Order your copy today!


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