top of page

BlackBay Insights

  • Writer's pictureHayley Lee

Employee Entitlements on Australia Day: Substitution Options

Entitlement to a day off on a public holiday

The National Employment Standards (NES) is a set of standards that is prescribed by the Fair Work Act 2009 designed to protect employees in the national workplace relations system. It sets out the minimum standards applicable to employment which cannot be displaced, even by agreement. This includes employee entitlements to a paid day off on each public holiday.

The right of an employee to be absent from work on a public holiday is also provided under Section 114 of the Fair Work Act 2009 also sets out an entitlement for employees to be absent from their employment on a day or part-day that is a public holiday unless reasonably requested by the employer to work on the public holiday.

Employees may refuse to work on a public holiday if it is reasonable to do so or if the employer’s request is unreasonable. This section further provides the criteria for determining whether a request is reasonable. Certain factors include the nature of the work and workplace, the employee’s personal circumstances, the type of employment and entitlement to overtime payments, penalty rate entitlement. An employee cannot be forced to work on a public holiday where to do so would be unreasonable.

Working on Australia Day

The controversy surrounding Australia Day, which falls on 26 January each year, is well known and the debate to change the date is gaining momentum. As the date coincides with significantly painful events for the Aboriginal and Torres Strait Islander people and is increasingly seen as a day of mourning rather than celebration, many employers are offering employees the opportunity to work on the public holiday and take a day off on another date. In 2023, many major companies including Telstra, Woolworths, KPMG, and Deloitte gave staff the option to work on Australia Day, in exchange for a day off on an alternate date.

Can employees work on a public holiday in exchange for an alternative day off?

Although employees’ entitlement to be absent from work on a public holiday is prescribed under the Fair Work Act 2009 and the NES, an employee who wishes to work on a public holiday can do so in exchange for an alternative day off. Employees are free to agree with their employers to work on a public holiday in exchange for an alternative day off if this is allowed under any award or enterprise agreement covering the employment.

If the employee is not covered under an award or enterprise agreement that allows substitution it is open to the employee and employer to agree to a substitution of the day off. This should be a substitution for the public holiday and not be replaced with an additional day of annual leave, as this would result in a contravention of the NES if.

Any agreement to substitute the public holiday on 26 January with another day off should be recorded in writing.

Feel welcome to reach out to the team at BlackBay Lawyers if you need assistance in reviewing and substitution entitlements, implementing the option in your workplace or documenting any agreements reached.


bottom of page