Australia Day: Employees and their public holiday rights #notthedatetocelebrateJan 24, 2023
More and more Australians are choosing not to celebrate Australia Day due to what it represents; invasion and genocide of the Indigenous Australian people and the suffering experienced since that day. #ChangetheDate is the call to cancel Australia Day and have a new public holiday that celebrates and brings together all cultures and diversities.
Substituting Public Holidays
As a general rule, the entitlement to take a public holiday off forms part of the National Employment Standards (NES). Many modern awards allow employees to substitute a public holiday for another day, so long as it is agreed upon between the majority of employees and employer.
This rule isn't exclusive to Australia Day - however it is most commonly evoked on this particular public holiday as many people feel it is not an appropriate day to celebrate.
Any agreement must be documented in writing.
What if only some employees want to substitute the public holiday?
Individual employees and the employer can agree to substitute a public holiday as long as there is no undue influence by the employer, nor disadvantage to the employee.
For the 26th Jan, typically employers will allow employees to pick another day that week which they take off (substitute) instead.
What if my employees aren't covered by an award?
As per the Fair Work Act, employees who aren't covered by an award or agreement are still entitled to request a substitution for the public holiday so long as both parties can agree to it.
Can I force my employees to substitute their public holidays?
No, as per the Fair Work Act, employers cannot pressure their employees in relation to agreeing to substitute a public holiday.