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IMPORTANT Public Holiday Legislation Update

A recent Federal Court decision has had significant influence in highlighting the obligations for employers when rostering staff on a public holiday. The case clarifies that employees can only be required to work on a public holiday where they have first been requested to work on the day. Where the employee agrees to work on a public holiday, then there would be no further issues. However, should an employee refuse the initial request, an employer can only "override" this and place a requirement to work the public holiday, where this is reasonable and the employee's refusal was also unreasonable. 

Essentially, there is no ability for an employer to simply have a blanket requirement for employees to work public holidays. The case highlights it is necessary for a compulsory step to first be taken in all instances where an employee is first requested to work on a public holiday, and employees are given an opportunity to accept or decline the request. The purpose of this is to encourage employers to actively communicate with employees about work on a public holiday, rather than have a unilateral ability outright to roster staff on for a public holiday without consultation. 

In the case, the court specifically addressed the practice of employers simply rostering employees to work public holidays. They highlighted that in all circumstances a request to work a public holiday should be made, which means a roster containing public holiday work should either be presented as a draft roster, including a request to work on those public holidays or a roster should only be published after a request has been made for employees to work public holidays.

For employers who have already rostered employees to work over the Easter period (but have not first made a request which the employee could accept or decline), our recommendation would be to contact employees to make clear that they are able to accept or decline the shift on reasonable grounds. If an employee does not wish to work, the employer will need to ask for and assess the reason for the refusal. So long as the refusal is unreasonable, the employee can still be required to work.

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