Substitution of Public Holidays

April 3, 2024

Substitution of Public Holidays - Could it work in your business?

There is an increasing trend with businesses providing an opportunity for their employees to substitute public holidays throughout the calendar year. This trend has become particularly prevalent in large scale business environments, but it is growing in popularity across smaller business environments (as identified by a recent survey by job advertising site Indeed).

How can this benefit the business and our employees?

Some of the reasons why, and benefits to allowing employees to substitute their holidays include the following:

Provides greater flexibility to employees to take leave on days that are culturally relevant to them. For example, an employee might want to work during the Easter public holidays, and then take ‘public holiday leave’ on a more culturally significant time for them such as during the Chinese New Year celebrations, or Diwali.

This also provides an opportunity to demonstrate that your organisational culture recognises and celebrates diversity across your workforce and could support an organisation to be seen as an Employer of Choice.

There could be financial advantage to employers if your business operations need to be maintained and continued on Public Holidays, and you need to roster some of your team to work. You may be able to avoid paying penalty rates to employees on these days if they do work, and then provide them with an alternate date to take off, when it is otherwise an ordinary business day for other employees.

What do I need to consider?

If your organisation was to consider allowing employees to substitute their public holidays there are some important factors to consider from both a legal and an agreement perspective.

From a legal perspective some of things to consider include the following points:

If an employee is not covered by a modern award or enterprise agreement then there is more flexibility for the employee and the employer to vary the terms, including providing the opportunity for public holidays to be substituted.

If an employee is covered by an award or agreement, then it is imperative that the employer check the provisions of the award or agreement to ensure that there is a term within the award which permits such substitution. If there is no such terms, substitution would not be allowed.

From an agreement perspective it is important to recognise that an employer cannot push their values or opinions or preferences onto an employee. For example, if an employer determined that for their branding purposes, they did not want to recognise Australia Day (as has increasingly become more contentious), and to operate as business as usual, they could not force this decision onto their employees. This is because the public holiday continues to be a designated public holiday.

There can be a fine line between an employer advocating for a social change in connection with their preferences and culture, and respecting an employee’s right to make their own choice based on their preferences.

If an organisation does allow for substitution of public holidays, this should only be promoted as an option and a choice, and not a preference or a directive. It’s essential that employees do not face any judgement or discrimination at work based on making their own choices.

As mentioned above, there may be some benefits in allowing public holidays to be substituted. If an employer is interested in exploring this within their organisation, they would first need to check the legality of doing so. Following that, it could be a good idea to explore this option with your workforce to see what they think about the opportunity for substitution. This could be done for example by preparing a brief pulse survey to canvas opinions and capture feedback.

If your organisation does implement public holiday substitution, then it would be necessary to document this agreement with your employees on each occasion it may occur.

How can HR Advice Online Support my business?

HR Advice Online provides a simple outsourced solution that will support you throughout the complete employee lifecycle; from recruitment to managing performance, navigating specific issues, and ending employment.

With easy access to professional help, you can gain the peace of mind that comes with knowing your business is compliant. Not having the right advice at the right time can cost you time and money. Our membership packages include:

Support from our HR Advisory team for advice on issues specific to your business.
Access to a wide range of resources and templates to assist you through every stage of the employee lifecycle
Educational webinars & videos
Regular updates when legislation changes

HR Advice Online provides a range of flexible HR solutions for organisations
seeking to outsource specialist services or the full HR function. Contact us to discuss your business needs.

Want to understand the legality of public holiday substitution in your workplace? You can speak with our team for information and advice by contracting us at: [email protected] or 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.

Information in HR Advice Online guides and blog posts are meant purely for educational discussion of human resources issues. It contains general information about human resources matters and due to factors, such as Government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.