Your rights to work (or not work) public holidays
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:
- The nature of the industry,
- Your personal circumstances, including family responsibilities,
- Whether you would expect that you might be asked to work,
- Whether you receive overtime, penalty rate or other compensation,
- Whether you are full-time, part-time or casual,
- The amount of notice given by your employer in requesting your work,
- The amount of notice you might provide in declining to work, and
- 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.
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