An employee may request to substitute another day or part day that would otherwise be a public holiday. The requested day will be substituted if the employer agrees to the employee’s request.
Does an employer have to agree to such a request? It does not expressly state in the SCHADS Award that the employers agreement is not be unreasonably withheld but an employer must still comply with section 114 of the Fair Work Act 2009 (Cth) (FW Act). An employer can exercise its right under section 114 of the FW Act to request that an employee work on a public holiday if the request is reasonable.
If an employer requests an employee to work on a public holiday the employee may refuse the request if it is not reasonable or the refusal is reasonable.
In determining whether a request or a refusal of a request to work on a public holiday is reasonable there are a number of factors to take into account under section 114 of the FW Act. This includes the following: the nature of the workplace and its operational requirements, the nature of the work performed by the employee, the employee’s personal circumstances including family responsibilities, whether the employee can reasonably expect that the employer might request work on a public holiday, whether the employee is entitled to receive overtime payments penalty rates or other compensation for working on a public holiday, the type of employment of the employee, the amount of notice given by the employer to request the employee works on a public holiday, the amount of notice given for refusal and any other relevant matters.
In light of the changes to the SCHADS Award employers should expect to receive requests to substitute public holidays and should be ready to respond to such requests in a reasonable manner particularly if employees are going to be required to work on the public holiday. We would recommend that you start planning for public holidays to give notice to employees about your expectations to work public holidays. You could also request that employees provide you with reasonable notice of any requests to substitute the public holiday so you have time to reasonably consider it. This will need to be managed carefully to ensure compliance with the SCHADS Award and the FW Act. Please do not hesitate to contact us if you have any questions or would like some advice in this regard.
