November 14, 2025
A Federal Court decision clarifying workers’ public holiday work rights has found that BHP’s OS labour hire arm broke the law by forcing mineworkers to work Christmas and Boxing Day, instead of asking them. The workers will now be compensated, and BHP fined.
This win caused a lot of discussion among MEU members about their public holiday work rights online.
The following general advice is designed to clarify the rules with regard to working on public holidays for members. If you’re unsure, always check with the union first!
Under the National Employment Standards, if your employer wants you to work a public holiday, they have to request you to work on that day. You have the right to say no, but you need reasonable grounds.
Reasonable grounds include things like:
• Family or caring responsibilities
• Fatigue from long shifts or rosters
• Religious or cultural reasons
• Wanting to spend the public holiday with loved ones
Even when you’re covered by an EBA or an Award, the National Employment Standards apply to everyone.
If you’re being told rather than asked to work on a public holiday, this may be a breach of the Fair Work Act.
If your employer asks you to work a public holiday and you refuse, they can only require you to work if your refusal isn’t reasonable in the circumstances.
Section 114(4) of the Fair Work Act sets out what counts as “reasonable,” and it looks at things like:
- the nature of your work and whether the business normally operates on public holidays,
- your personal circumstances, including family or caring responsibilities,
- whether you’re casual, full-time or part-time,
- how much notice you were given,
- and whether you’re being compensated appropriately (penalty rates, etc).
So, if you’ve clearly raised reasonable grounds, your employer can’t just override that. They’d need to show that your refusal was unreasonable in the context of the job and the workplace’s needs.
What counts as “reasonable” isn’t a guaranteed win for anyone, it’s a balancing test. Your reasons matter, but so do the real operational needs of the workplace. If there’s a dispute, an independent umpire weighs both and decides what’s fair.
Can my employer make me work on a public holiday?
In short:
- They can request, not command (this is what the MEU’s win clarified)
- You can refuse on reasonable grounds
- They can only insist if your refusal itself isn’t reasonable
- If there was a dispute, the Fair Work Commission would decide what’s reasonable in the circumstances.
If you’re ever unsure, talk to your delegate or the union before responding.
Remember: the National Employment Standards are just the baseline. Some EBAs include clearer or stronger rules around public holiday work so be sure to check your agreement as well.