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Have you been asked to work on Christmas, Boxing Day or another public holiday?  If so, you may be wondering if you are obliged to do so.

A recent Federal Court judgment has clarified the circumstances in which employers can direct staff to work on public holidays, especially Christmas. In Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372, the Court determined an employer had breached the Fair Work Act 2009 (Cth) (FW Act) by effectively compelling 85 employees to work on Christmas Day and Boxing Day without giving them a real opportunity to refuse. The Court’s judgment provides broader guidance for employees wondering how to respond to a request from their employer to work on a public holiday. We analyse this further below.

Legal framework and Public Holiday rights

i. The entitlement to be absent from work

Section 114(1) of the FW Act creates a default entitlement for employees to be absent from work on public holidays. This means that the starting point under the legislation is that an employee does not have to work on a public holiday unless certain statutory exceptions apply.

ii. Reasonable requests and reasonable refusals

The FW Act allows an employer to request that an employee work on a public holiday if the request is reasonable. Section 114(3) confirms that the employee may refuse that request if the refusal is reasonable. These provisions are intended to balance operational needs with the personal circumstances and expectations of employees.

Section 114(4) sets out a detailed list of considerations for assessing reasonableness. These include the nature of the employer’s operations, the employee’s role within the business, the employee’s personal and family responsibilities, whether public holiday work is a known or expected feature of their job, whether the employee receives overtime or penalty rates for working those days, the type of employment relationship, and the amount of notice provided for both the request and any refusal. The Act also allows any other relevant factor to be considered, ensuring that the assessment remains contextual and flexible.

iii. Interaction with section 44

Importantly, section 114 is a “national employment standard” (NES), which are a group of entitlements that all employees are entitled to, irrespective of what their employment contract, a policy or an industrial instrument says.  Section 44 of the FW Act prohibits contraventions of the NES. This means that any breach of section 114 is automatically a breach of section 44, which can attract penalties.

Background

The Mining and Energy Union commenced legal proceedings against OS MCAP, alleging that the company had acted unlawfully by directing employees to work Christmas Day and Boxing Day in 2019. The employees worked at BHP’s operations in the coal mining industry and were salaried workers who were rostered across the holiday period.

In 2022, the primary judge initially dismissed the Union’s claim. However, on appeal, the Full Court found that the primary judge had erred. The Full Court held that OS MCAP had not made a reasonable request but had instead issued what was essentially a mandatory direction. Because employees were not given an opportunity to refuse, OS MCAP’s conduct breached section 114. Therefore, section 44 was also breached.

Full Court key findings

The Full Court made several important observations about how section 114 should operate, including:

1. A genuine request for work must allow for the possibility of discussion and refusal. A direction that has the character of a mandatory roster is inconsistent with the concept of a request.
2. The purpose of section 114 is to ensure that employers cannot require employees to work on public holidays unless the request is reasonable and unless any refusal is unreasonable. The section is not simply procedural; it protects a substantive entitlement.
3. A contravention occurs when the employee is actually made to work on the public holiday in circumstances where the statutory entitlement has not been properly respected.

The matter was returned to the primary judge to determine compensation and penalties.

The Federal Court’s determination on remedies

Justice Rangiah found that the affected employees had not suffered economic loss. This conclusion was based on evidence showing that the employees’ annualised salaries were higher than the amounts they would have earned under the Black Coal Mining Award 2010, even when accounting for work on up to ten public holidays per year. The Court accepted that the salary structure already factored in public holiday work, which meant the employees were financially compensated for the work they performed on public holidays.

Although no economic loss was established, the Court found that employees had suffered non-economic loss. The employees were prevented from exercising their statutory right to reasonably refuse to work on Christmas Day and Boxing Day. Several employees gave evidence describing their personal circumstances, including the importance of spending Christmas with immediate and extended family, longstanding cultural and family traditions, and the emotional strain of missing time with children and partners.

Justice Rangiah accepted this evidence and awarded compensation ranging from $800 to $1,700 for each employee. The variance reflected individual circumstances and whether the employee had provided oral evidence of the emotional impact.

The Court also imposed a civil penalty of $15,000 on OS MCAP, payable to the Union. In determining the penalty, the Court considered the number of employees affected, the extended period over which the conduct occurred, and the involvement of senior management in decisions that contributed to the contraventions. These factors elevated the seriousness of the breach.

Implications of this judgment

This judgment has several implications with respect to a request for an employee to perform work on a public holiday. This includes that:

• A request must be genuine. Employers must ensure that public holiday work is framed as a request rather than an instruction. Roster systems that automatically allocate employees without providing an opportunity to refuse will not satisfy section 114, as occurred in the OS MCAP.
• Reasonableness must be carefully assessed. Both parties must consider the statutory factors. For employers in industries that operate continuously, such as mining, aged care or emergency services, requests may be more readily considered reasonable. However, employees still retain the right to reasonably refuse, and employers must consider personal circumstances in good faith.
• Providing sufficient notice is a significant factor. Early communication allows employees to manage personal responsibilities and increases the likelihood that a request will be considered reasonable. Conversely, short notice may weaken an employer’s position, opening the door for an employee to refuse to perform the public holiday work (and the refusal will be more likely to be considered reasonable, particularly if short notice was provided by the employer).

The decision serves as a clear reminder that public holiday work is governed by strict statutory requirements. Employers must approach Christmas rostering, and all public holiday staffing, by making genuine requests, considering refusals carefully, and respecting the NES. Employees are not automatically required to work on public holidays, and any breach of their entitlement may expose employers to compensation claims and penalties. The Federal Court has reinforced that compliance with section 114 is not merely procedural, it is central to protecting work-life balance and ensuring fair treatment during significant holiday periods.

This article was published on 26 November by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website.