In recent years the debate about whether the 26 January should be celebrated as Australia Day has intensified, given the date’s link to the colonisation of Australia.

The Fair Work Act 2009 outlines a list of certain days that are recognised as public holidays for all employees (including Australia Day). But what happens if your employees do not wish to celebrate certain holidays? Or what if they have a more personally meaningful day that they want to recognise instead?

There are a variety of reasons why an employee may request to not recognise a certain public holiday, and there are strict rules for what flexibility an employer can offer in these situations. We go through these in further detail within this article. 

Before we do that, let’s just have a quick recap about how the law generally operates regarding public holidays.

 

Public holidays and the law

All employees are generally entitled to be absent from work on a public holiday, but can be required to work on a public holiday where the requirement is reasonable. A requirement to work a public holiday is likely to be found to be reasonable where, for example, the business they work in usually operates on public holidays and the employee knew it was a requirement of the role to work on public holidays when they accepted the position.

If the public holiday falls on a day an employee would ordinarily work, then full-time and part-time employees will be entitled to be paid their usual base rate of pay when absent from work. Casual employees do not receive payment for being absent from work on a public holiday.

It is also important to check the provisions of any modern award or enterprise agreement that applies to your business as sometimes these provide for more generous provisions regarding absence on public holidays.

If an employee does perform work on a public holiday, modern awards generally require that they are paid higher rates of pay (e.g. double-time-and-a-half).

 

Can my employees “swap” public holidays?

It is sometimes possible for an employee and employer to agree to substitute a public holiday for another day instead, depending on the circumstances. For employees that are covered by a modern award or enterprise agreement, substituting a public holiday is only possible if the award or agreement provides for this ability.

Many modern awards do provide for this term, for example the Hair and Beauty Award 2020 allows an employer and employee to reach an agreement to substitute another day for a public holiday under clause 29.2. If an agreement is reached, the gazetted public holiday will then be treated as an ordinary day of work, and public holiday penalties and rules will apply instead to the substituted day if it is worked, or else employees will be entitled to a paid day off on the substitute day. However, you should check the applicable award or agreement for any further terms it may include around substituted holidays. Any agreement for a substitution should be documented in writing with the employee.

Where the award or agreement is silent on the ability to substitute a public holiday, the business will be unable to come to this arrangement with the employees – even if they were agreeable to it. This would mean that if the employee wanted to work on the public holiday they would be entitled to the public holiday penalty rates. If the employer agreed they could have an alternative paid day off, they would be doing so as an additional benefit, but the employer would be under no obligation to agree to this. 

Given the rules about substitution of public holidays always require agreement, an employee cannot insist that they want to substitute a public holiday for another, if the employer does not agree to it. 

 

What about award-free employees?

If your employee is not covered by a modern award or enterprise agreement, the Fair Work Act allows for an employer and employee to substitute a public holiday by mutual agreement.

 

What if I want to direct my employee to work the public holiday?

It is not uncommon for an employee to request to not work a public holiday, especially where that day may hold specific cultural or religious significance for them personally. As noted above, under the Fair Work Act, employees are generally entitled to be absent on a public holiday. Although a business can request an employee to work on a public holiday, they only will be able to require this where it is reasonable. Equally, an employee can refuse a request to work a public holiday where it is reasonable. Whether the request / refusal will depends on the circumstances but can include:

  • The nature of the workplace or it’s operational requirements
  • The employee’s personal circumstances, including any family or caring responsibilities
  • Whether the employee could reasonably expect that they might be requested to work on the public holiday (i.e. if the expectation was made clear to the employee when they accepted the position)
  • Their employment type (i.e. full-time, part-time etc.)
  • Any additional entitlements the employee may be entitled to receive (i.e. overtime, penalty rates etc).
  • How much notice the business provided to work the holiday, and how much notice the employee provided to refuse the work
  •  Any other relevant matter (which could include cultural or religious reasons)

This means you will need to take these factors into account when considering whether the request / refusal to work the public holiday is reasonable, and reasons such as cultural and religious significance should be considered on a case-by-case basis. 

We have further guidance on obligations around public holidays, including how these interact with aspects such as other leave here.

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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