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Public Holiday Substitution in Australia

Published February 21, 2024 (last updated on April 18, 2024) | Adam Wyatt - Content Writer

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In Australia, public holidays are a time for rest, celebration, and national reflection. However, in our diverse and ever-evolving workforce, the question often arises: ‘Can you swap public holidays?’ 

Whether you're contemplating working on Australia Day or considering a substitution for another public holiday, understanding the flexibility within Australia's employment laws is crucial.  

This guide delves into the specifics of substituting public holidays and what it means for both employers and employees. 

What is public holiday substitution? 

Public holiday substitution allows employees who work on designated public holidays, like Australia Day, to take another ordinary day off in lieu, ensuring they still benefit from their entitled rest days. This practice acknowledges an employee's personal circumstances, including diverse cultural and personal commitments of Australia's workforce, and provides flexibility for businesses that operate on public holidays. 

Legal considerations and employer obligations 

The National Employment Standards (NES) are the minimum standards of employment set out in the Fair Work Act 2009. This facilitates the substitution of public holidays based on mutual agreement between the employer and the employee.  

Employers must navigate these requests with a clear understanding of legal obligations, including penalty rates for employees working on public holidays and the right to refuse to work on public holidays under reasonable circumstances. 

Who can substitute a public holiday?  

Understanding who can substitute a public holiday in Australia requires navigating the specifics of employment arrangements. This section clarifies eligibility based on your workplace contract. 

Employees covered by Awards or Enterprise Agreements 

If you fall under an Award or Enterprise Agreement, particularly in industries like retail, hospitality, or healthcare, you may have the privilege of substituting a public holiday. However, this relies on reaching a written agreement with your employer.  

Carefully review your applicable Award or agreement details and initiate a professional conversation with your manager to explore the possibility. It's important to acknowledge that such provisions might not exist in sectors like mining or construction, so due diligence is crucial. 

Award-free employees 

Even without an Award or Enterprise Agreement, the Fair Work Act offers the opportunity to negotiate a public holiday substitution with your employer. While this path allows for more flexibility, success hinges on presenting a compelling and well-reasoned request.  

Open communication and genuine justifications are key to securing employer approval. Remember, while your employer retains the right to decline, a professional approach can significantly increase your chances of securing that alternate day off. 

Employers' role in public holiday substitution 

As an employer, your role is critical in ensuring a fair and consistent approach to public holiday substitution requests. Carefully evaluating each request based on legitimate reasons and established criteria is paramount. Maintaining detailed records of each process is essential, and adhering to anti-discrimination principles is non-negotiable.  

By fostering a workplace culture that values inclusivity and respects individual circumstances, you can create a harmonious environment where employees feel valued regardless of their desired holiday schedule. 

Reasons for substituting a public holiday  

While public holidays offer employees valuable respite, situations arise where substituting a day off presents strategic advantages. This section delves into the key reasons why employers might consider offering public holiday substitution options, fostering a mutually beneficial environment. 

Promoting cultural inclusion and employee value 

Australia's rich tapestry of cultures and religions necessitates acknowledging diverse calendars. Public holiday substitution empowers employees to celebrate significant religious or cultural observances not recognised on the national calendar. 

Enhancing employee well-being and retention 

Personal milestones and celebrations don't always align with statutory breaks. Offering substitution options grants employees flexibility to mark important life events like graduations and family responsibilities without sacrificing paid time off. This fosters positive employee relationships, improves morale, and enhances retention. 

Optimising operational efficiency (with caution) 

Strategic substitution can contribute to operational efficiency in specific industries like retail or tourism. By swapping a quieter public holiday for a busier period, employers can ensure adequate staffing levels, potentially boosting productivity and revenue. However, transparent communication, fair implementation, and strict adherence to employee consent are crucial to avoid legal implications and generating negative sentiment. 

Can you work on Australia Day? 

Australia Day, held annually on January 26, is a significant national public holiday. Employees may work on this day, often due to the nature of their industry (e.g., hospitality or emergency services) or personal choice. In such instances, the option to substitute the Australia Day public holiday for another day off is possible, subject to agreement with your employer. 

How to substitute a public holiday 

  1. Employer-employee agreement: The primary step is reaching an agreement. Open dialogue about the desire or necessity to work on a public holiday and the preference for a substitute day is essential. 

  2. Written agreement: While not mandatory, documenting the agreement in writing can prevent misunderstandings. This might include specifying the substitute day agreed upon. 

  3. Consideration of requests: Employers are encouraged to consider requests for substitution fairly, keeping in mind operational requirements and the employee's reasons for the request. 

  4. Communicate clearly: Clear communication about the arrangement to all stakeholders, including team members and HR departments, ensures smooth implementation. 

Case studies: Public holiday substitution in action 

How public holiday substitution can work in different industries.  

Case study 1: Retail   

A retail business operates on Australia Day due to high customer demand. The management offers employees the option to work on Australia Day with public holiday penalty rates and choose another day off as a substitute. This approach ensures operational efficiency while respecting employee preferences. 

Case study 2: IT 

An IT company requires a minimal staffing level during public holidays for essential operations. It negotiates with employees to work on a rotational basis during public holidays, offering substitute days off and ensuring everyone receives their entitled leave. 

Case study 3: Tourism  

A regional tourism operator, facing fluctuating visitor numbers, allowed employees to substitute public holidays during quieter periods for busier times. This ensured adequate staffing during peak seasons, leading to improved customer service, increased revenue, and a win-win for both employees and the business. 

Substitution day policies 

While some employers substitute public holidays on a case-by-case basis, Employsure advises establishing clear policies to avoid confusion. These policies can form part of an employee handbook and should outline the process for requesting a substitute day, the criteria for approval, and any limitations or conditions that apply. A well-defined policy ensures fairness and transparency, facilitating a positive workplace culture. 

Expert support for your workplace 

Navigating public holiday substitution requires a balanced approach, respecting both legal obligations and individual preferences. Employsure is dedicated to providing expert guidance to Australian businesses and employees, ensuring a smooth process for substituting public holidays. 

For personalised advice and support on managing public holiday substitutions in your workplace, reach out to Employsure. Let us help you create a flexible, compliant, and harmonious working environment. 

Frequently Asked Questions

Q: Can I swap a public holiday in Australia?
A: Yes, but it depends on any existing Awards, Enterprise Agreements, or your employer's company policies. 
Q: How do employers handle multiple substitution requests for the same day?
A: Employers should consider the operational impact and may need to prioritise requests based on business needs, fairness, and first-requested, first-offered basis.
Q: Are there limitations on when the substitute day can be taken?
A: Ideally, the substitute day should be taken at a time that is mutually agreeable and does not adversely affect business operations. Employers may set guidelines within their substitution policies.
Q: What if an employer refuses a substitution request?
A: Employers should provide reasonable grounds for any refusal. Employees can seek advice from the Fair Work Ombudsman if they believe their request was unfairly denied.


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