By Lewis Roper, Senior Associate, Australian Business Lawyers & Advisors

As we enter the festive season, the usual hot topics for HR teams and leaders include managing parties and behaviours at out-of-hours events, as well as the “do’s and don’ts” of annual operations shutdowns and leave management.

However, in recent times, the rostering of employees to work on public holidays has become more of a legal minefield than just the usual operational headache of finding available workers. This is particularly so for the service sectors, where additional staffing is often needed to cover increased demand or trade, and in 24/7 shift-work settings with complex rostering processes.

Traditionally, many employers simply published a roster or included clauses in employment contracts that expected or required employees to work on public holidays.  However, that conventional approach was turned on its head in 2023 by the Full Federal Court decision in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51.

To comply with the requirements of the Fair Work Act 2009 (the FW Act), employers must follow a more detailed process when requesting employees to work on public holidays.

The Decision

The Full Court’s decision considered a roster issued by OS MCAP (an in-house labour hire division of BHP) that required 85 employees to work Christmas Day and Boxing Day. The employees worked at a mine that operates 24 hours per day and 365 days per year.

The employees were engaged on a rotating roster of seven days on and seven days off. Several employees were rostered to work the Christmas and Boxing Day holidays. As the holidays approached, OS MCAP communicated to employees that if any had special circumstances, they could request to have the public holidays off. Of these requests, nine were granted and the remaining 85 employees worked the public holidays.

OS MCAP contended that implied in its rostering of the employees was an ability for the employees to refuse to work the day, should they have reasonable grounds.

However, the Full Court rejected this argument and held that there is a difference between requiring an employee to work a public holiday (as OS MCAP did by rostering its employees on Christmas Day and Boxing Day) and requesting employees to work a public holiday.

As no request was made, the Full Court held that the FW Act had been breached and referred the matter back to the primary judge to determine the appropriate remedy and penalty.

Relevant Provisions of the FW Act

Sections 114(1)-(3) of the FW Act provide:

• An entitlement for employees to be absent from work on a public holiday;
• that an employer may request an employee to work a public holiday, if the request is reasonable; and
• that an employee may refuse the employer’s request if the request was not reasonable or if the refusal is reasonable.

Section 114(4) sets out several considerations to determine whether a request or refusal is reasonable, such as:

• the nature of the workplace and the work performed by the employee
• the personal circumstances (including family responsibilities) of the employee
• whether the employee could reasonably be expected to work on the public holiday
• whether the employee is entitled to, or may receive additional compensation (e.g. penalty rates) that reflect an expectation of working a public holiday
• the type of employment (e.g. permanent, casual, shift work)
• the amount of advance notice given by the employer of the request
• the amount of advance notice given by the employee in refusing the request

The Full Court’s Findings

The Full Court unsurprisingly found that s114(1) of the Fair Work Act entitles employees to be absent from work on a public holiday.

However, the Full Court noted that this entitlement can only be displaced where:

• an employer has requested that an employee work the public holiday; and either:
  • the employee agrees to work the holiday; or
  • the employee refuses but the refusal is unreasonable (triggering a right for the employer to direct the working of the public holiday).

In either case, the Full Court emphasised that the working of a public holiday can only occur lawfully if the employer has first made a request for the holiday to be worked.

In this case (as is often the case in some service and shift-work environments), no request was made. OS MCAP simply rostered its employees to work the public holidays.

OS MCAP’s application for leave to appeal the Decision was rejected in late 2025 by the High Court, affirming the Full Federal Court’s decision that employers must first request employees work on public holidays.

Practical Tips for Employers this Festive Season

To ensure employers comply with the requirements of the Act, the following are some practical tips for employers to manage the process of requesting employees to work on public holidays

• Engage early with your workforce about availability, and the operational needs and requirements of rostering over the Christmas/New Year period
• When preparing rosters:
  • seek volunteers who may want to work the public holidays
  • (where practical and subject to any Award obligations) publish an indicative or proposed roster for employees to consider, and facilitate consultation with employees
• Ensure employees who do want to work on public holidays have given their clear agreement to do so.  While sometimes employee-agreement may be implied by the absence of any disagreement with the proposal, relying on this may not be always sufficient to discharge the obligations under the FW Act.  
• Only finalise a roster once you have engaged in consultation with the workforce and considered all requests and/or refusals.
• If an employee refuses a request to work the public holiday, consider whether the refusal is reasonable (having regard to the factors set out in s114(4) of the FW Act)
• For some employers, developing a policy or procedure to document how rosters are prepared around public holidays may be necessary to give guidance to line managers and divisions on the approach to preparing rosters, and also recording any agreement or refusal to work.  

Things to keep in mind

The rostering of employees on public holidays is not as straightforward as it once seemed.  

Employers are no longer able to simply publish a roster or expect that they can require an employee to work on a public holiday. 

Rather, there must be a genuine request to work made, and the employee must be able to consider and exercise their right to accept or refuse the request. Employers can only require the employee to work if their refusal is unreasonable (having regard to the individual circumstances).

Ensuring that discussions happen early with the workforce is critical to allowing employers to comply with their legal obligations, as well as being able to plan operations effectively and efficiently.  

If your business has questions regarding rostering, use your membership entitlements and contact the Workplace Advice Line to confirm what you need to do.

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