Will your rostering be compliant on the Australia Day Public Holiday?

The Australia Day public holiday falls on Monday, 26 January 2026 and planning on how do deal with roster patterns that require work on this day should nearly be finalized by now.

In our earlier articles on Public Holiday Compliance confirmed by High Court and Important Changes to Public Holiday Compliance, we discussed how to comply with the NES employees must be given a reasonable choice as to whether they will agree or reasonably refuse to work on a public holiday. That is an employer can still request that an employee work on a public holiday, however that request can be refused by an employee if the request is not reasonable or there are reasonable grounds for refusal.

Recommended steps

To this end, we recommend that employers take the following steps when a public holiday is approaching:

Step 1 (Request) – issue a request that employees work on specific public holidays, with an invitation to respond with any personal reasons as to why the employer’s request isn’t accepted. This could be in the form of an indicative draft roster or written request to work on a public holiday.

Step 2 (Employee Response) – the employee then either accepts or refuses the request (including providing any personal reasons why the request isn’t accepted).

Step 3 (Consideration of Response) - consider whether having regard to a range of factors, as well as the employee’s reasons for refusal to work on a public holiday, it is still reasonable to require the employee to work on the public holiday.

Step 4 (Check Modern Award / Enterprise Agreement or Contract) – if there is a term that states a requirement to work on public holidays, this will be relevant but not decisive as to whether the request is reasonable. [Generally, substitution of a public holiday is only permitted where the applicable instrument allows for it and usually requires further agreement between both the parties.]

Step 5 (Tell the Employee) – having considered the relevant factors, communicate the final decision to the employees. This may be challengeable.

What factors need to be considered?

Factors that are relevant to whether a request or refusal is reasonable include (section 114 Fair Work Act):

1. the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

2. the employee’s personal circumstances, including family responsibilities;

3. whether the employee could reasonably expect that the employer might request work on the public holiday. A positive obligation in a modern award, enterprise agreement or employment contract will be relevant but not decisive;

4. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

6. the amount of notice in advance of the public holiday given by the employer when making the request;

7. in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request; and

8. any other relevant matter.

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