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ARTICLE · 12 APRIL 2023

Important developments regarding public holidays: Can employees be required to work?

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Employers should be aware of this recent decision about an employee's entitlement to be absent on a public holiday.

AustraliaEmployment and HR
Rachel Drew
Rachel Drew
Jade-Ann Reeves
Jade-Ann Reeves
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Employers must be aware of the consequences of the recent decision of the Full Court of the Federal Court (Court) about employees' entitlement to be absent on a public holiday.

In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Court overturned a decision of the Federal Court, finding that the primary judge erred in his Honour's interpretation of 'request' under section 114 of the Fair Work Act 2009 (Cth) (FW Act).

Section 114 of the FW Act provides that an employee is entitled to be absent on a public holiday, but an employer may request the employee to work on a public holiday if the request is reasonable. If the request is not reasonable or the employee's refusal is reasonable, then the employee may refuse to work on the public holiday.

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