Employment & Safety Update – 15 January 2024

Australia Day public holiday

In recent years there has been significant public debate about the Australia Day public holiday. For many, the holiday is controversial, and it is a difficult day for First Nations people.

Employers have increasingly been allowing their employees to choose whether to continue to observe the public holiday, or work on Australia Day and take a different day off. This year the Tasmanian Government has joined suit, giving its employees the option to substitute their Australia Day public holiday to a different date.

What do employers need to do?

Some employers are proactively giving employees the option to elect to work Australia Day, and take a different day off. One of the advantages of this option is that the employer is better able to suggest an alternative day that is convenient for several staff to be absent (for example, within the following four weeks, or Easter Tuesday) where this is not already being given. Others are managing this matter on a case-by-case basis as employees make the request.

If an employee is not covered by an Award or an Enterprise Agreement (EA), the employer and employee can agree to substitute January 26th for a different day. If an employee is covered by an Award or an EA, then the parties can substitute the day, provided the Award or EA allows for it (and lots of them do).

An agreement to substitute the day should be recorded in writing, such as an email, and saved to the employee’s file.

Can employers make staff work on January 26th?

Employers cannot compel employees to substitute the Australia Day public holiday. Employees are entitled to be absent from work on a public holiday (subject to some exceptions) and should not be pressured to work on January 26th.

For more information, please contact one of our Employment & Safety group.

Joe Mullavey
M: 0416 794 061
E: jmullavey@pageseager.com.au

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