An increasing number of businesses are offering their employees the choice to work on January 26th in exchange for a different day off.
While your employer cannot pressure you to substitute a public holiday for another date, if mutually agreed upon, it is permittable in certain circumstances. This is especially important concerning Australia Day, as many businesses are actively advocating for a change to the date. Regardless of your employer's social or political views, public holidays are an entitlement under the National Employment Standards (NES). As an employee, you are not required to work on public holidays, and your decision should be respected. Any adverse action taken against an employee for exercising their right not to work is unlawful.
So how does substituting a public holiday work in reality?
Employees covered by an Award
If you are an employee covered by an award or enterprise agreement, you and your employer can only agree to swap a public holiday for another ordinary day if there is a term permitting the substitution.
It is important to note any substitution of a public holiday for another day must be agreed upon between an individual employee and their employer, meaning different agreements might be reached by co-workers.
In the absence of a term permitting a swap, employees must receive pay and entitlements as set out in the award or enterprise agreement for time worked.
Employees not covered by an Award
For employees not covered by an award or enterprise agreement, your employer can agree to swap the Australia Day public holiday for another ordinary day which will then be treated like a public holiday.
Some employers may already have policies that allow workers to substitute public holidays, in which case you should follow the standard internal processes associated with that policy.
Do I have to take the day off if my employer is closed?
If your employer is closing the business for a public holiday, you will likely need to take the day off, and this would be considered a reasonable and lawful direction.
