Summary
An employee is entitled to be absent from work on a public holiday. An employer may request that they work it, if the request is reasonable — and the employee may refuse, if the request is unreasonable or their refusal is reasonable.
Those two sentences from the National Employment Standards contain the whole problem, and the word that does the damage is request. A great many employers do not make a request. They publish a roster with the employee's name on Christmas Day, and treat the absence of a complaint as consent. The Federal Court has held that this is not enough — and that finding is the single most useful thing in this article.
This guide covers the requirement to actually ask, what makes a refusal reasonable, who gets paid what, substitution, and the part-day holidays that catch payroll out every December.
Rostering is not requesting
In a 2023 Full Federal Court decision concerning a mine site, an employer's rosters required employees to work public holidays as part of their ordinary pattern, and the employees were paid an annualised rate that took public holiday work into account. The Court held that the employer had not made a request within the meaning of the NES. Rostering someone to work is a direction; the NES contemplates something the employee is genuinely able to decline.
The practical consequences are concrete:
- A roster is not a request. Publishing the shift does not discharge the obligation.
- A contract clause is not a request either. "You may be required to work public holidays" does not convert a direction into a request made on the day.
- The request must come first, and refusal must be genuinely open. The employee has to be able to say no without it being insubordination.
None of this stops you opening on a public holiday. It changes the sequence: ask, allow a real answer, then roster. In a business that trades every public holiday, that is a small amount of extra process a few times a year — and it is the difference between a compliant roster and one built on an entitlement nobody was actually offered.
What makes a request or refusal reasonable
The Act lists the factors, and both sides are judged against the same list:
- The nature of the workplace and the work — a hospital, a hotel and an accounting office are not comparable.
- The employee's personal circumstances, including family responsibilities.
- Whether they could reasonably expect the employer might request it. Someone hired into a café that has always opened on public holidays is in a different position from someone hired into a Monday-to-Friday role.
- Whether they are entitled to overtime, penalty rates or a loading reflecting an expectation of public holiday work.
- The type of employment — full-time, part-time, casual, shift work.
- The amount of notice given by the employer in making the request, and by the employee in refusing.
Notice is the factor employers control most easily and use least. A request made three weeks out is far more reasonable than the same request made on the day before, and it also gets you a better answer. Ask early.
Who gets paid, and what
Three distinct situations, regularly conflated:
Absent on a public holiday
A full-time or part-time employee who is absent because of a public holiday is paid at their base rate of pay for the ordinary hours they would have worked on that day. Base rate means no penalties, loadings or allowances.
The phrase doing the work is "would have worked". A part-time employee who never works Mondays gets nothing for a Monday public holiday — there are no ordinary hours to pay. This is why an accurate ordinary-hours pattern for every part-timer matters more than it appears to.
Working on a public holiday
Paid according to the award, agreement or contract — typically a public holiday penalty rate, and often a minimum engagement period. The NES sets no rate for working; it only guarantees the base-rate payment for being absent.
Casuals
A casual has no ordinary hours, so there is nothing to pay for a public holiday not worked. A casual who does work is paid the applicable public holiday rate, which in most awards is the penalty rate applied to their casual rate — check whether your award compounds the casual loading with the penalty or applies a single combined figure, because both structures exist and the difference is material.
Substitution
An award or enterprise agreement may allow a public holiday to be substituted for another day — useful for businesses where the holiday is a trading peak. Where substitution applies, the substituted day becomes the public holiday for NES purposes and the original day does not.
Two things to get right. Substitution must be permitted by the instrument, or agreed with the employee where the instrument allows agreement — you cannot simply declare it. And it must be recorded, because at year end the question "which day was the public holiday for this person?" needs an answer that is not a memory.
The multi-state problem
Public holidays are declared by each state and territory, and they do not match. Beyond the national set, there are holidays that exist in one jurisdiction and not others, regional show days that apply to a single locality, and different dates for the same holiday.
The rule is that the holiday that applies is the one where the employee is based for work purposes — not where your head office is, and not where payroll is processed. For a business operating across borders this means one pay period can contain a public holiday for some staff and an ordinary day for others, with different rates applying to identical shifts.
If you run more than one location, this is the single most likely source of a public holiday error, and it repeats every year. Our guide to multi-location and multi-timezone operation covers the related date-boundary problems.
Part-day public holidays
Several jurisdictions declare part-day public holidays — commonly from early evening on Christmas Eve and New Year's Eve. They are genuine public holidays for the hours they cover, which means a shift straddling the start time is split: ordinary or evening rates before, public holiday rates after.
Payroll systems that treat a public holiday as a whole-day flag get this wrong every year, because the flag cannot express "from 7pm". If you trade on Christmas Eve, check specifically that your system can rate part of a shift differently from the rest of it — and check it in November, not on 27 December.
A short checklist
- List the public holidays for each location's state or territory at the start of the year, including regional and part-day holidays.
- Ask, in writing, before rostering. A short message naming the date and asking who is available is a request; a published roster is not.
- Give as much notice as you can. It is a listed reasonableness factor and it improves your coverage.
- Record refusals without consequence. Refusing a public holiday shift on reasonable grounds is the exercise of an NES entitlement.
- Check ordinary hours for every part-timer, because that is what decides the absent-day payment.
- Confirm your system can split a shift at a part-day holiday boundary.
- Record any substitution at the time it is agreed.
Where the system helps
Public holidays are a rostering problem before they are a payroll problem. NestedClock records rostered hours and actual worked hours per person per location, so the ordinary-hours figure that drives the absent-day payment is a record rather than an estimate, and a shift that ran into a part-day holiday shows its real start and finish times rather than a rounded block. Because locations carry their own settings, staff at different sites are not forced onto one head-office calendar — which is what makes the multi-state case manageable. Requests and responses sent through staff messaging leave a record that a request was actually made, which is precisely the evidence the decision above turns on.
Where to check the detail
Public holiday entitlements are in the National Employment Standards in the Fair Work Act 2009. Rates for working a public holiday are in your award or agreement. The declared holidays for each year are published by each state and territory government — check them annually, because dates and part-day arrangements change.
This article is general information, not legal advice.