Can my job make me work on a public holiday without extra pay?

My relative works full-time for a business that is open every day of the year except Christmas Day. He has two days off per week, but not a standard weekend.

He said he signed a workplace agreement that means he still has to work public holidays if they are not his allocated two days off – such as Good Friday, Boxing Day, and ANZAC Day. He doesn’t get public holiday loading, either; they are just treated as normal workdays for him.

This doesn’t seem right to me. Is this company allowed to make him work public holidays if they fall on his standard workday for no additional money because he has signed this right away in a workplace agreement?

While being rostered on to work on a public holiday can feel like a tough gig, if your work has given you enough notice, there may not be much you can do.Credit: John Shakespeare

I spoke with Professor Joellen Riley Munton from the Faculty of Law at the University of Technology Sydney about your question, and she told me that “the only definite entitlement we all have respecting work on public holidays is the right to refuse to work on those days”.

Even then, that only counts “if the employer’s request that we should work is unreasonable and our refusal to comply with the request is not unreasonable”.

“So it comes down to the battle of the reasons. The factors that influence whether a request or refusal is unreasonable include the nature of the business and the role – some jobs, like hospital emergency work, just have to be done 24/7 – the family circumstances of the worker, the level of remuneration and whether there are penalty rates for hours on public holidays, and how much notice people are given of the need to work. So it does very much depend on the job.”

We can’t just sign away [such protections] by entering into a contract that undermines them.

Professor Joellen Riley Munton

Professor Munton said that whether your family member’s work is covered by an award will also influence his entitlements.

“Occupations that are covered by modern awards generally do provide for penalty rates on public holidays. Likewise, union-negotiated enterprise bargains invariably deal with how 24/7 rosters should be managed to ensure extra remuneration for those who are rostered on for public holidays,” she says.

“When I was a journalist, back in the Cretaceous period, we had rosters that required work on public holidays – even Christmas – because a paper was published on Boxing Day. But our award at the time dealt with that by giving us an extra 12 days of annual leave.”

Now, to your specific question about whether your relative could have signed away his entitlements in an agreement. Well, if you’re talking about statutory rights, the answer, says Professor Munton, is no.

Even if this job exists outside the award system, it’s bound by the National Employment Standards. Although these standards don’t guarantee penalty rates for public holidays, they do “guarantee a paid day off if the boss doesn’t request that you work for a good reason”.

“We can’t just sign away [such protections] by entering into a contract that undermines them. However, sometimes statutory entitlements are drafted in a sufficiently fuzzy way that they can be affected by individual agreements,” she says.

“So, in this case, the fact that the obligation to work on public holidays was put into a contract and agreed to by the employee, means that the employee has had a lot of notice of the requirement. The ‘reasonableness’ factor going to whether notice was given has probably been satisfied here.”

“It is possible that the arrangement could still be challenged, though, if the contract breaches an applicable award, or if the contract is unreasonable in some other respect – perhaps because the wage rate is low, and there is no trade-off by way of more other days off.”

As always, with questions that relate to the legal side of work, we can’t offer specific advice and, as Joellen told me, even if we wanted to, it would be difficult to be definitive “without a lot more detail about the nature of the business, the particular role, the remuneration structure, other conditions of work, such as annual and personal leave entitlements”.

These are details we’re unlikely to mention in Work Therapy because they risk the anonymity of the reader (or, in this case, their loved one). If, after reading this response, you still feel something isn’t right, my advice would be to have your relative consult with a lawyer.

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