Public holidays play a crucial role in providing employees with essential time for rest, relaxation, and personal pursuits. However, the nature of some public holidays may not always align with personal circumstances or operational requirements.
In such cases, the Fair Work Act 2009 (Cth) (“the Act”) provides for the substitution of public holidays, allowing employers and employees to mutually agree to substitute one day for another. This provision is also reflected in the Electrical, Electronic and Communications Contracting Award 2020 (“the Electrical Award) as clause 26 addresses the substitution of public holidays, where both employers and employees can agree to substitute another day.
When would you need to substitute a public holiday?
An example of when public holidays may be substituted:
Sam owns and operates an electrical company which is covered by the Electrical, Electronic and Communications Contracting Award 2020.
Sam has an urgent job that needs to be done on Labour Day public holiday. Sam discussed substitution of the Labour Day public holiday with the employees. The employees agreed to work on Labour Day and to have the public holiday taken on the day after Labour Day.
The urgent job is completed on Labour Day and the employees take the day after Labour day as a public holiday.
How do you substitute a public holiday?
To execute a public holiday swap, both parties must agree to the substitution in writing. This not only ensures clarity and compliance with the NES and relevant award provisions but also serves a practical purpose by preventing misunderstandings, minimising workplace disputes, and establishing clear expectations.
What if no mutual agreement can be facilitated?
If the employer and employee are unable to agree on public holiday substitution, the employer can still request the employee to work on a public holiday. While the employee can still refuse this request, they can only do so if the request is not reasonable or if the refusal is reasonable.
The following factors are considered when determining whether a request or a refusal is reasonable:
- The nature of employer’s workplace;
- Employee’s personal circumstances;
- Whether it was expected that work on the Public Holiday would be requested;
- Penalty rates, overtime payments or remuneration which carries an expectation of public holiday work;
- Type of employment (full-time, part-time or casual);
- Amount of notice provided to work the public holiday or to refuse to work the public holiday.
It is important to keep in mind that the employer can only request employees to work a public holiday, not require employees to do so.
Substituting public holidays under the Act and relevant awards allows for a more adaptable and employee-friendly work environment. By understanding the provisions outlined in the legislation, adhering to proper procedures, and fostering open communication, both employers and employees can strike a balance that respects operational needs while accommodating personal circumstances.
Ensure that any agreements are documented in writing to maintain transparency and uphold the principles of fair work practices.