Christmas Public Holidays & Staff Rights

With the festive season coming up many salons will choose to open for business on some or all of the public holidays. Some staff love working on public holidays because it means they earn penalty rates. Other staff members would prefer to take the public holiday leave in order to spend time with friends and family.

The Fair Work Act provides that you can request an employee to work on any public holiday if it is reasonable for you to do so. Similarly, the employee can refuse, but their refusal must also be reasonable.

How do you determine if a request or refusal is reasonable?
Unfortunately, there is no single factor that determines this. You need to take all of the following factors into consideration:
• the nature and requirements of your business;
• the nature of the work performed by the employee;
• the employee's personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that you might request work on the public holiday;
• whether the employee is entitled to receive additional compensation for working on public holidays;
• the type of the employee's employment (e.g. full-time, part-time, casual or shift work); and
• the amount of notice you give when making the request and/or the amount the employee gave you in refusing the request.

It can be difficult to weigh each of these factors, but there are a few recent cases that can help shed some light on the issue.
For example, in a recent case, Fair Work Australia (FWA) held that it was a reasonable for a driver at a transportation company to refuse to work on Christmas and Boxing Day even though:
• the employer was contractually required to provide services every day including public holidays; and
• the employer's request to work on Christmas and Boxing Day was reasonably made three weeks ahead of time.

FWA decided that the employee's refusal to work on a public holiday was reasonable because:
• the employee had family responsibilities;
• the employee thought he was not required to work public holidays under the work system he was transferred to in December 2009, and he hadn't done so for a year;
• the employee had advised the company that he would be unable to work public holidays ahead of being asked to do so; and
• there was a miscommunication between the employee and his manager at a meeting: the manager left the meeting believing that the employee had agreed to work, but the employee believed the issue would be discussed further at a meeting with other employees.

FWA also stated that even if an employee has good reason for refusing their employer's request to work on a public holiday, their refusal will not be reasonable unless they explain those reasons to their employer.

So what can you learn from this case?
If there is an expectation that employees will regularly work public holidays, you should communicate this to them at the outset of their employment.
You should stipulate the process that your employees must follow if they want to request not to work on a particular holiday, and explain any refusal clearly.

Public Holidays Christmas New Year

New South Wales

Queensland

Victoria

Western Australia

Northern Territory, South Australia, Tasmania and Canberra

Please note: Public holidays of governed by state laws and are subject to change without notice from the time of publication. For further information visit www.australia.gov.au