The Christmas and New Year period is one of the busiest times for retailers. With increased demand often comes the need for additional staffing – including on public holidays. Under the Fair Work Act 2009, employers must follow the correct process when requesting employees to work on a public holiday.

Many retailers are surprised to learn that simply publishing a roster or inserting a clause into an employment contract does not constitute a lawful request to work on a public holiday. This is because employees have a statutory entitlement to be absent on a public holiday, and employers must actively request — not require — that an employee work.

Under the Fair Work Act:

1. Employers may ask an employee to work on a public holiday only if the request is reasonable.
2. An employee may refuse such a request, provided the refusal is reasonable in the circumstances.

What Is a “Reasonable” Request?

Whether a request is reasonable depends on a range of factors, including:

• The nature of the workplace, such as retail environments that operate seven days a week
• An employee’s personal circumstances, including caring responsibilities or religious and cultural observance
• Whether the employee could reasonably expect to be asked to work on the public holiday
• The amount of notice provided to the employee regarding the request
• Operational requirements, past practice, and whether working public holidays aligns with the employee’s role

Retailers should keep in mind that each situation must be assessed individually — a one-size-fits-all approach does not satisfy the legislation.

Best Practice

To meet your obligations and ensure a fair process, consider adopting the following approach when organising public holiday staffing:

1. Start with a conversation. Talk with employees or team groups to explain the upcoming need for public holiday coverage.

2. Follow up in writing. Send an email or message through your usual communication platform requesting confirmation of whether each employee is available to work.
3. Seek volunteers first, wherever operationally possible.
4. Require a clear “yes” or “no” response.
   Importantly, an ‘opt-out’ system — such as saying employees will be rostered unless they object — is not compliant.
5. Finalise the roster only after making a reasonable request and considering all responses.
6. If an employee refuses the request, consider whether their refusal is reasonable, taking into account their personal and workplace circumstances.

Key Takeaways

Public holiday rostering is no longer as simple as publishing a schedule. Retailers must ensure they are making a genuine, reasonable request and allowing employees the opportunity to accept or decline in line with their statutory rights.

By implementing a consistent and fair process, retailers can manage operational needs while staying compliant — and foster a respectful, informed workplace culture during one of the busiest times of the year.

Use the Checklist below as a guide to help you stay compliant with your holiday rostering.