Most rostering software treats a public holiday like any other day: drag a shift onto the calendar, publish, done. For most days, that’s fine. For public holidays, it can quietly put an employer on the wrong side of the National Employment Standards.
The issue is a distinction that’s easy to miss. Under the law, rostering someone is not the same as asking them to work. A roster is a statement of who you’d like on. A public holiday shift requires something more: a request the employee can reasonably refuse. Skip that step, and the shift may breach the National Employment Standards no matter what the contract or award says.
This is one of the most common compliance gaps in shift-based businesses, and one of the least understood. Here’s what the rules require and how to build a process that holds up.
What the National Employment Standards say
Section 114 of the Fair Work Act 2009 gives every employee the right to be absent from work on a public holiday. An employer can request that an employee work, but that request has to be reasonable, and the employee can refuse it if their refusal is reasonable.
In other words, the entitlement is to not work. Working a public holiday is the exception, and it depends on a reasonable request being made first.
Whether a request is reasonable depends on the circumstances: the nature of the work, the employee’s personal situation, whether they’re full-time, part-time or casual, how much notice they were given, and whether the role attracts public holiday pay. Whether a refusal is reasonable depends on the same kinds of factors, viewed from the employee’s side.
The practical takeaway is simpler than the legal test: the request has to come before the shift, and the employee has to have a genuine opportunity to say no.
Why the roster itself isn’t enough
This is the part that catches employers out. Publishing a roster with someone’s name against a public holiday shift is not, on its own, a request that satisfies the National Employment Standards.
A Federal Court decision in 2023 made this concrete. The court found that an employer who simply rostered employees on public holidays, without first making a request they could reasonably refuse, had breached section 114, even though the employees’ contracts contemplated public holiday work. The roster was treated as a direction, not a request, and that was the problem.
The lesson is that the sequence matters. Ask first. Let the employee respond. Then finalise the roster. Doing it in that order is the difference between a compliant process and a potential breach.
A process that holds up
You don’t need a legal team to get this right. You need a repeatable process and a record that it happened. For a public holiday or a period that includes one:
- Issue a draft, not a final roster. Mark the public holiday shifts as proposed.
- Make the request explicit. Ask each affected employee whether they’re willing to work the shift. The ask should be clearly a request, not a notification.
- Give a real opportunity to decline. Reasonable notice matters. A request made the night before is weaker than one made two weeks out.
- Record the response. Note who accepted, who declined, and the reason for any refusal. This record is what protects you if a dispute arises later.
- Finalise only after responses are in. Build the published roster around who actually agreed to work.
The administrative weight of this is small when it’s built into your workflow and large when it’s done by memory and goodwill. The businesses that get into trouble are usually the ones treating the roster as the request.
The detail that trips up multi-site operators
Public holidays in Australia are not uniform. They’re set by a combination of national and state or territory declarations, and they differ in ways that are easy to overlook:
- Queensland observes a Show Day that varies by region.
- Victoria has a public holiday for the Melbourne Cup.
- Easter Saturday, Labour Day and the Queen’s or King’s Birthday fall on different dates in different states.
If you operate across borders, a single roster template won’t reflect the right public holidays for every site. The request process has to run against each location’s actual public holiday calendar, and the pay treatment has to follow suit.
What good software does about it
This is exactly the kind of problem rostering software should solve rather than create. A tool that takes public holidays seriously will:
- Detect public holidays by location, including state and regional variations.
- Prompt for a request-and-response step before a public holiday shift can be published.
- Keep an audit-ready record of who was asked, who agreed, and who declined.
- Map public holiday shifts to the correct pay treatment before payroll runs.
Done well, the compliance step becomes part of publishing a roster rather than a separate task someone has to remember.
The short version
A roster is not a request. Before anyone works a public holiday, the National Employment Standards expect a request the employee can reasonably refuse, made with enough notice to be genuine, and recorded so you can show it happened. Build that into the way you publish rosters and the rest takes care of itself.
This article is general information about Australian workplace obligations and isn’t legal advice. For advice on your specific situation, speak to a workplace relations professional or the Fair Work Ombudsman.
Sources
- Fair Work Ombudsman — Not working on public holidays
- Fair Work Act 2009 (Cth) — section 114
- CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 — analysis by Clayton Utz