Aus­tralia Day Sub­sti­tu­tion: The Legal Issues (2024 Edition)

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, neg­a­tive sen­ti­ment among a size­able and increas­ing pro­por­tion of the pub­lic to the date on which Aus­tralia Day is cur­rent­ly held. (The debate on that under­ly­ing issue is beyond the scope of this article.)

This rais­es the ques­tion: if employ­ers want to per­mit employ­ees to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er day, what legal issues arise?

For employ­ees not cov­ered by either a mod­ern award or enter­prise agree­ment, the employ­er and employ­ee can agree to sub­sti­tute the Aus­tralia Day 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 it is allowed before offer­ing the oppor­tu­ni­ty to sub­sti­tute to those employees. 

An employ­er can­not com­pel an employ­ee to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er date. The employ­ee must agree to the substitution. 

Fur­ther, it is imper­a­tive that employ­ers do not exert undue influ­ence or undue pres­sure in rela­tion to a deci­sion by an employ­ee to sub­sti­tute the Aus­tralia Day pub­lic hol­i­day for anoth­er day. This rais­es an inter­est­ing issue where employ­ers have active­ly advo­cat­ed for a change of date for Aus­tralia Day. 

While some employ­ers have adopt­ed a neu­tral stance on the issue of change of date but nev­er­the­less giv­en employ­ees the option to sub­sti­tute so they can exer­cise their own pre­rog­a­tive or con­science on the mat­ter, 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. Employ­ers need to be very care­ful in imple­ment­ing a pol­i­cy of per­mit­ting employ­ees to swap dates that the avowed philo­soph­i­cal posi­tion of the employ­er on the issue does not lead to undue influ­ence or undue pres­sure being exert­ed on an employ­ee to do so. 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. 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 and not sub­sti­tute it must not be sub­ject to any adverse action by the employ­er (such as ter­mi­na­tion of employ­ment or demo­tion) for exer­cis­ing that right. 

On a relat­ed note, employ­ers also need to keep in mind sec­tion 114 of the Fair Work Act 2009 (Cth.) (the Act), which pro­vides that employ­ees are enti­tled to be absent from work on a pub­lic hol­i­day (includ­ing Aus­tralia Day). Employ­ers may request an employ­ee to work on a pub­lic hol­i­day pro­vid­ed that request is reasonable. 

The sem­i­nal deci­sion of the Full Fed­er­al Court last year in Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union v OS MCAP Pty Ltd [2023] FCAFC 51 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 for the pur­pose of sec­tion 114.

Once a prop­er request is made, 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. While the spe­cif­ic propo­si­tion is yet to be test­ed in the courts (and may nev­er be), gen­er­al­ly speak­ing it would be high­ly unlike­ly that a court would con­sid­er a request by an employ­er that an employ­ee work on Aus­tralia Day to be a rea­son­able request for the pur­pose of sec­tion 114 of the Act if the sole or pri­ma­ry rea­son for the request was for the employ­er to adopt or advance a cor­po­rate philo­soph­i­cal posi­tion on the date of Aus­tralia Day.

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