Thinking of letting staff swap the Australia Day public holiday?

Keep these legal considerations in mind when allowing staff to swap out public holidays that don’t align with their beliefs.

It has been report­ed that some of the largest employ­ers in Aus­tralia, includ­ing Wool­worths, Tel­stra and Net­work 10, are now giv­ing employ­ees the option of work­ing on Aus­tralia Day (Jan­u­ary 26) and tak­ing a day’s hol­i­day at anoth­er time. 

This devel­op­ment has arisen from a gen­er­al trend towards flex­i­bil­i­ty in the work­place and, more specif­i­cal­ly, neg­a­tive sen­ti­ment among a size­able and increas­ing pro­por­tion of the pub­lic regarding the date on which Aus­tralia Day is cur­rent­ly held. (The debate on that under­ly­ing issue is beyond the scope of this article.)

This rais­es the ques­tion: if employ­ers want to per­mit employ­ees to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er day, what legal issues could arise?

Here are a few things for HR and employers to consider.

Are they covered by an Award?

For employ­ees not cov­ered by either a mod­ern Award or enter­prise agree­ment, the employ­er and employ­ee can agree to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er ordi­nary day, which will then be treat­ed like a pub­lic hol­i­day for that employee.

For employ­ees cov­ered by an award or enter­prise agree­ment, the employ­er and employ­ee can agree to swap the Aus­tralia Day pub­lic hol­i­day for anoth­er ordi­nary day, pro­vid­ed there is a term in the applic­a­ble Award or agree­ment per­mit­ting the sub­sti­tu­tion. As such, in those cas­es it is imper­a­tive employ­ers check the Award or agree­ment to see if it’s allowed before offer­ing the oppor­tu­ni­ty to sub­sti­tute the holiday to those employees. 

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Do employees feel they can decline the offer?

An employ­er can­not com­pel any employ­ee to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er date. The employ­ee must agree to the substitution.

Fur­ther, it’s imper­a­tive that employ­ers do not exert undue influ­ence or pres­sure in rela­tion to a deci­sion by an employ­ee to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er day. This rais­es an inter­est­ing issue in cases where employ­ers have active­ly advo­cat­ed for a change of date for Aus­tralia Day. 

Some employ­ers have adopt­ed a neu­tral stance on the issue of changing the date, but have still giv­en employ­ees the option to sub­sti­tute the day so they can exer­cise their own pre­rog­a­tive or con­science on the mat­ter. Oth­er employ­ers have adopt­ed a more vocal and emphat­ic stance, pub­licly call­ing for Aus­tralia Day to be moved from Jan­u­ary 26.

In the latter examples, many businesses are cham­pi­oning a ​“busi­ness as usu­al” approach in their workplaces on that date. These employ­ers need to be very care­ful in imple­ment­ing a pol­i­cy per­mit­ting employ­ees to swap dates, as this could be argued as applying undue pressure or undue influence on a specific employee.

Exhor­ta­tions from man­age­ment, such as saying things like, ​“We expect employ­ees to do the right thing,” or ​“This is a time to show you are aligned with the val­ues of the organ­i­sa­tion,” should be scrupu­lous­ly avoid­ed. 

Employ­ers should empha­sise that the deci­sion to swap the pub­lic hol­i­day is ulti­mate­ly one for the employ­ee and any choice made will be respected.

How will employees be treated if they choose to take the day off?

As this can be a somewhat divisive issue in our community, it’s likely that you’ll have employees who sit on either side of the fence when it comes to changing the date. In this instance, it’s important for HR and managers to consider what could happen if your organisation offers the chance to swap out the day and certain people choose not to.

These employees must not be sub­ject to any adverse action by the employ­er, such as ter­mi­na­tion of employ­ment, demo­tion or detrimental behaviours, for exer­cis­ing that right. 

It’s important that this is communicated clearly to all managers, to protect yourself from a legal perspective, but also to employees more broadly, to avoid cracks forming in your organisational culture.

Read HRM’s guide on how to manage divisive topics in the workplace.

While employ­ers may want to send a pub­lic mes­sage about the date of Aus­tralia Day, a mes­sage with which many would agree, that can­not be at the expense of the right of an employ­ee to take Aus­tralia Day as a pub­lic hol­i­day if they wish to do so. That is a line employ­ers need to be care­ful not to cross.

Michael Byrnes is a Partner at Swaab. A version of this article first appeared on Swaab’s website. You can view the original here.