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Rostering Employees to Work on Public Holidays: New Precedence You Must Know

· 4 min read
Myaccountant Team

Public holiday rostering has long been a source of tension between employers and employees. Recent developments in Australian employment law have clarified — and in some cases shifted — the rules around when an employer can require an employee to work on a public holiday. Every business that operates on public holidays needs to understand these changes.

The Right to Refuse​

Under Section 114 of the Fair Work Act 2009, an employee may refuse a request or requirement to work on a public holiday if the refusal is reasonable. Equally, an employer may request or require an employee to work on a public holiday if the request is reasonable.

The Act sets out factors for determining reasonableness, including the nature of the workplace, the employee's personal circumstances (including family responsibilities), whether the employee could reasonably expect to be asked to work, the employee's pay and compensation arrangements, and the amount of notice given.

This framework creates a balancing test rather than an absolute right on either side.

Recent Fair Work Commission Decisions​

Several Fair Work Commission (FWC) decisions have refined how the reasonableness test is applied in practice. Key takeaways from recent cases include:

  • Industry expectations matter. Employees in hospitality, retail, healthcare, and emergency services can generally be expected to work public holidays, as these industries have a well-established pattern of public holiday operations. An employee who accepted a role knowing it involves weekend and public holiday work will find it harder to establish that a refusal is reasonable.
  • Adequate notice is essential. Employers who roster employees for public holidays with minimal notice are more likely to have the requirement found unreasonable. Best practice is to provide as much notice as possible — ideally at the time the roster is published, not as a last-minute change.
  • Personal circumstances carry weight. Family commitments, cultural or religious observance, and caring responsibilities have been given significant weight in recent decisions. An employer that does not consider or accommodate these factors risks an unfair dismissal or adverse action claim if the employee is disciplined for refusing.
  • Penalty rates are relevant but not determinative. The fact that an employee receives public holiday penalty rates does not automatically make it reasonable to require them to work. The penalty rate compensates for the inconvenience — it does not eliminate the employee's right to refuse.

Implications for Employers​

These developments mean that employers cannot treat public holiday rostering as a simple operational decision. A more considered approach is required:

  1. Build public holiday expectations into employment contracts and position descriptions. If a role regularly involves public holiday work, this should be clearly stated from the outset.
  2. Consult with employees before finalising public holiday rosters. Ask employees about their availability and any personal circumstances that may affect their ability to work. Document these conversations.
  3. Apply the reasonableness test genuinely. Consider each employee's individual circumstances rather than applying a blanket requirement. What is reasonable for one employee may not be reasonable for another.
  4. Provide adequate notice. Publish public holiday rosters as early as possible. Avoid last-minute roster changes unless genuinely unavoidable.
  5. Do not penalise reasonable refusals. If an employee refuses to work a public holiday and the refusal is reasonable, taking disciplinary action or reducing their future shifts could constitute adverse action under the Fair Work Act.

Penalty Rates and Pay Obligations​

Employees who do work on public holidays are entitled to the penalty rates specified in their applicable modern award or enterprise agreement. For most awards, this is 250 per cent of the ordinary hourly rate (double time and a half) for full-time and part-time employees, and 275 per cent for casuals.

Some awards also provide for substitute days or additional leave for employees who work on public holidays. Employers should check the specific provisions of the relevant award.

The Bottom Line​

Public holiday rostering requires a balance between operational needs and employee rights. Employers who approach it thoughtfully — with clear expectations, early communication, and genuine consideration of individual circumstances — will manage both their workforce and their legal obligations effectively.