Do you know what to do if an employee asks to swap the upcoming public holidays?
Easter and ANZAC Day are coming up and many employers are considering the option of allowing employees to swap public holidays for various reasons, whether it be to accommodate personal beliefs or to recognise culturally significant events.
However, before implementing, it’s crucial to understand the legal considerations involved. Here’s what you need to do:
1. Consider Awards and Enterprise Agreements:
For employees not covered by modern awards or enterprise agreements, the substitution of public holidays is typically a matter of mutual agreement between the employer and employee.
In cases where awards or agreements do apply, employers must ensure that provisions exist permitting the substitution of public holidays and adhere to those terms.
2. Gain Employee Consent:
Employers cannot enforce their values on employees regarding the substitution of public holidays. Employees must agree to any proposed swaps voluntarily. Employers need to emphasise that the decision to swap public holidays is ultimately up to the employee and will be respected, fostering an environment of autonomy and inclusivity.
3. Promote Employee Choice:
Employers should refrain from exerting undue influence or pressure on employees regarding their holiday choices. Avoid making statements that could be interpreted as coercive or judgmental.
4. Avoid Adverse Action:
Employees who choose to swap or not to swap public holidays should not face any negative consequences or discrimination as a result of their decision.
5. Consider Reasonable Requests for Work:
While employees are generally entitled to be absent from work on public holidays, there may be circumstances where employers can request employees to work if deemed reasonable.
Any request to work on a public holiday must provide employees with an opportunity to consider and refuse the request, with factors such as personal circumstances and advance notice taken into account.
In 2023, the Federal Court confirmed that requiring employees to work on public holidays without prior consultation breaches the Fair Work Act.
What does this mean for employers who need staff on public holidays?
✅ You must ask employees if they are willing to work on a public holiday.
✅ You must inform them of their right to refuse.
✅ If an employee declines, you can only require them to work if your request is reasonable and their refusal is unreasonable.
Asking employees to work on public holidays should be the beginning of a conversation, not the end. Open communication ensures clarity and compliance with workplace laws.
If you have any questions about managing public holiday work arrangements, reach out — we’re here to help!
