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An increasing number of businesses are offering their employees
the choice to work on January 26th in exchange for a different day
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
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
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
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.
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