If you’re thinking of allowing employees to substitute public holidays that don’t align with their beliefs or to make room to celebrate a more culturally significant event later in the year, keep these legal tips in mind. 

In recent years, 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 that public holiday at another time.

This development has arisen from both a general trend towards flexibility in the workplace and, more specifically, the growing number of Australians who don’t wish to mark the occasion.

However, there are other reasons employees might want to swap their public holidays. For example, perhaps non-religious employees would prefer to swap the Easter public holidays to celebrate a more culturally significant day to them, like Chinese New Year or Diwali.

A recent survey published by recruitment firm Robert Half found that 65 per cent of Australian employees say their employer allows them to take another culturally or religiously significant day off in return for working a gazetted public holiday, and 15 per cent of employees take their employer up on that offer.

So if employers want to permit employees to substitute their public holidays for another day, what legal considerations do they need to consider? 

Awards and enterprise agreements 

For employees not covered by either a modern award or enterprise agreement, the employer and employee can agree to substitute the 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 this is allowed. 

Importantly, an employer cannot push their values and opinions onto employees by compelling them to substitute the Aus­tralia Day public holiday, or any other public holidays, for another date. The employee must agree to the substitution and, ideally, be the one to raise it. 

This also raises an interesting issue where employers have actively advocated for a change of date for Australia Day.

“Employers should empha­sise that the deci­sion to swap the pub­lic hol­i­day is ulti­mate­ly one for the employ­ee and any choice made will be respected.” – Michael Byrnes, Partner, Swaab

Ensure it’s promoted as a choice, not a judgment

Some employers have adopted a neutral stance on the issue, but  have still given employees the option to substitute, so they can exercise their own prerogative or conscience on the matter. 

However, other employers have adopted a more vocal and emphatic stance, publicly calling for Australia Day to be moved from January 26, and championing a ​“business as usual” approach in their workplaces on that date. 

If your organisation is considering the latter point, it’s extremely important to not exert undue influence or pressure for those employees who want to take the public holiday. Exhortations from management such as (by way of example): ​“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. 

Care must be taken to ensure that those employees don’t face any judgment or discrimination from leadership or their colleagues for making this decision. The aim should be to give employees choice, not pressure them to act contrary to their beliefs and values.

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

In that regard, and unsurprisingly, employees who decide to take the Australia Day public holiday off  must not be subject to any adverse action by the employer (such as termination of employment or demotion) for exercising that legal right. 

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Is it ever reasonable to request people work on a public holiday?

As with many rules, there are often specific exceptions to keep in mind. For example, while employers need to keep in mind section 114 of the Fair Work Act 2009, which provides that employees are entitled to be absent from work on a public holiday, there are instances where they may request employees to work – if the request is deemed “reasonable”. 

The seminal decision of the Full Federal Court in 2023 – Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] – established the principle that such a request by an employer needs to provide an opportunity for the employee to consider it and refuse – for example, merely unilaterally rostering employees to work on a public holiday will not constitute a proper request. 

Once a proper request is made, outlining the reasons (such as operational requirements) the employee may then refuse to work on the public holiday if either the request by the employer is not reasonable or the refusal by the employee is reasonable. 

Section 114 sets out various factors that must be taken into account in determining whether this is the case, including the nature of the employer’s workplace and the personal circumstances of the employee. 

Factors that are often considered in a request or refusal can include:

• The employee’s personal circumstances, including family responsibilities
• Whether the employee is entitled to overtime payments, penalty rates or other compensation
• The type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork)
• The amount of advance notice given by the employer
• Whether the employee could reasonably expect to be asked to work on a public holiday 

Generally speaking, it would be highly unlikely that a court would consider a request to work on Australia Day to be reasonable (for the pur­pose of sec­tion 114) if the primary reason for the request was for the employer to adopt or advance a corporate philosophical position.

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

Michael Byrnes is a Partner at Swaab. A version of this article was published in January 2024 and first appeared on Swaab’s website. You can view the original here.