Section 114 of the Fair Work Act 2009 (Cth) provides an entitlement for an employee to be absent from their employment on a public holiday.
This section also provides that an employer may ask an employee to work on a public holiday, but that the employee may refuse the request if:
In the recent decision in Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372, the Federal Court of Australia (FCA) ordered an employer pay almost $100,000 (including $15,000 in penalties to be paid to the Mining and Energy Union and $83,700 in compensation to 85 employees) who were required to work on Christmas Day and Boxing Day in 2019.
The Full Court of the Federal Court of Australia had earlier found that the employer had contravened the FW Act by requiring the employees to work on the public holidays.
In making orders for compensation and penalties, the FCA found that the employees were not afforded the opportunity to raise reasonable grounds to refuse to work on the public holidays causing them damage or detriment (see Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51).
The FCA noted in the decision that employers must take into account factors, such as the operational requirements of their business and the employee’s personal circumstances, when requesting an employee work on a public holiday.
Further, the FCA commented that the purpose of the employer’s “request” is to give employees the opportunity to discuss, negotiate and contemplate a refusal.
With the holiday season right around the corner, the FCA’s decision is a timely reminder that employers must request, not require employees to work on public holidays, including Christmas Day, Boxing Day and New Year’s Day.
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