The provisions on this page take effect from 31 January 2025.
Under the Minimum Conditions of Employment Act 1993, employees in the state industrial relations system are entitled to be absent from work on a day (or part of a day) that is a public holiday.
An employer can request an employee to work on a public holiday if the request is reasonable, but an employee is entitled to refuse if the request is not reasonable or refusal is reasonable.
Before requiring or rostering an employee to work on a public holiday, an employer must first request an employee to work on a public holiday, and then discuss their request with the employee in order to determine whether the request is reasonable and the employee’s refusal (if any) is unreasonable.
Where an employer has made a request, they will be able to require an employee to work on a public holiday if, in accordance with all of the factors outlined below:
- the employer’s request is reasonable; and
- the employee’s refusal to work is unreasonable.
Requesting an employee to work on a public holiday
An employer must take into account all of the following factors when determining whether their request is reasonable:
- the nature and conduct of the employer’s business or operations
- the nature of the employee’s work
- the employee’s personal circumstances, including family responsibilities
- whether the employee could reasonably expect that the employer might request work on the public holiday
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation (including compensation in the form of an annualised salary), or a level of remuneration that reflects an expectation to work on the public holiday
- the type of employment of the employee, for example, whether full time, part time, casual or shift work, and
- the amount of notice in advance of the public holiday given by the employer when making the request.
For example, where an employer’s business operates on a 24/7 basis and there is requirement for a certain level of staffing, a request for an employee to work on a public holiday may be reasonable.
There may also be other matters which the employer may take into account.
Refusing a request to work on a public holiday
An employee will be entitled to refuse an employer’s request for them to work on a public holiday if:
- the employer’s request is not reasonable; or
- the employee’s refusal is reasonable.
Each of the same factors which apply in determining whether an employer’s request was reasonable are to be taken into account in determining whether an employee’s refusal of a request was reasonable.
For example, if an employee has notified their employer in advance of the need to be absent on a public holiday, their refusal of their employer’s request to work on the public holiday may be reasonable.
