Should employees be allowed to choose if they work on Australia Day?

'Put the power in the hands of the employee as to whether they want to do it or not'

Should employees be allowed to choose if they work on Australia Day?

Seventy five percent of Australian employees want the option of working on Australia Day, according to Indeed.

While 52% already have the option to work on the public day, around 3.7million (58%) will not take it as a public holiday, Indeed’s research found.

The top reasons for not taking the public holiday on January 26th are:

  • To earn more money (89%)
  • For flexibility to choose a different day off (78%)
  • They don’t believe January 26 should be a day of celebration (66%)

A national representative sample of 1,000 Australian employees between the ages of 18 and 64 were surveyed in the study. And the findings signalled a greater desire from employees to have flexibility when it comes to working – or not working – on public holidays. Sixty eight percent of respondents believes employees should be able to swap any public holiday for a different day off.

"When a business is able to offer flexible leave, it can provide a number of benefits,” Indeed workplace expert, Lauren Anderson said in a statement. “It enables workers to observe days of personal or religious significance to them.

 "Three out of five workers say they would be more likely to work for an employer who offers a flexible leave policy, therefore in a tight labour market flexible leave can be an attractive benefit."

But can employees just opt to work on Australia Day?

Controversy over Australia Day

January 26 marks the start of British settlement in Australia. But it is also “synonymous with the violent dispossession of Australia's First Nations people”, according to the National Indigenous Times.

The day is also referred to as Invasion Day or Survival Day, with events held around the country to protest the date, while also recognising the resilience of First Nations people.   

While Australia Day is a public holiday, several businesses have given their employees the option to work on that day and take another day off instead. These include Ten Network, Telstra, BHP, Woodside Energy and the University of Wollongong.

Legalities of working on Australia Day

For employees who want to work on Australia Day – and they are covered by a modern award or an enterprise agreement – the employer and employee can agree that they work and take the public holiday on another day. And that is if a term in the award or enterprise agreement allows such a substitution.

For employees who want to work on Australia Day but are not covered by a modern award or an enterprise agreement, the employer and employee can also agree that they can work on that day and substitute the public holiday for another day, Michael Byrnes, partner at law firm Swaab, told HRD Australia.

“But the employee can't force the employer to allow them to work Australia Day,” he saidxxz. “It must be something by agreement, where the employer actually agrees to that proposition.”

Don’t pressure employees

Byrnes emphasised that employers can’t force employees to substitute the Australia Day public holiday for another date.

“An organisation or an employer might have a strong philosophical position or corporate position on the date of Australia Day,” he said.

“And as part of that, to give effect to that, they might say to their employees: ‘We know Australia Day is a public holiday and you're entitled to take Australia Day as a public holiday but what we're going to do is we expect you to attend work on Australia Day and you can substitute it for a different day and that's our expectation.’”

Applying any pressure or duress of that kind “is something an employee should not and cannot do,” Brynes said.

And if an employee wants to take Australia Day off, but an employer believes it will go against the company’s values or moral or ethical framework, he said, it “could be a breach of the Fair Work Act by the employer by taking adverse action against an employee for exercising their workplace right to take that public holiday.”

Refusing to work on Australia Day

If there is a genuine operational need for the business to operate on Australia Day, an employer can request an employee to work. And an employee has the right to refuse that request, provided that the refusal is not unreasonable, Byrnes said.

“And that will largely come down to personal factors for the employee; whether they have other obligations on that day or whether it imposes some personal difficulty for them to work on that public holiday,” he said.

“But if ultimately the employer’s request is reasonable [and] the employees’ refusal to work that day is not reasonable, then the employee could be rostered on. And if employee just failed to attend, then that could be the subject of disciplinary action.”

How HR should handle holiday

As a starting point, Byrnes emphasised that employers should not put any pressure or expectation on employees that they will have to swap out Australia Day for a different day — it should be a request initiated by the employee.

“What the employer could do is to say to employees that if they are inclined or interested in working Australia Day and substituting that public holiday for a different day, that is something that the employer would be receptive to,” he said.

“So put the power in the hands of the employee as to whether they want to do it or not, without any weight of expectation. Simply make employees aware that if they want to make that request… then that is something that will be given favourable treatment by the employer. Let them know that if they ask the question, it will receive an affirmative response.”

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