Keep these legal considerations in mind when allowing staff to swap out public holidays that don’t align with their beliefs.
It has been reported that some of the largest employers in Australia, including Woolworths, Telstra and Network 10, are now giving employees the option of working on Australia Day (January 26) and taking a day’s holiday at another time.
This development has arisen from a general trend towards flexibility in the workplace and, more specifically, negative sentiment among a sizeable and increasing proportion of the public regarding the date on which Australia Day is currently held. (The debate on that underlying issue is beyond the scope of this article.)
This raises the question: if employers want to permit employees to substitute the Australia Day public holiday for another day, what legal issues could arise?
Here are a few things for HR and employers to consider.
Are they covered by an Award?
For employees not covered by either a modern Award or enterprise agreement, the employer and employee can agree to substitute the Australia Day public holiday for another ordinary day, which will then be treated like a public holiday for that employee.
For employees covered by an award or enterprise agreement, the employer and employee can agree to swap the Australia Day public holiday for another ordinary day, provided there is a term in the applicable Award or agreement permitting the substitution. As such, in those cases it is imperative employers check the Award or agreement to see if it’s allowed before offering the opportunity to substitute the holiday to those employees.
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Do employees feel they can decline the offer?
An employer cannot compel any employee to substitute the Australia Day public holiday for another date. The employee must agree to the substitution.
Further, it’s imperative that employers do not exert undue influence or pressure in relation to a decision by an employee to substitute the Australia Day public holiday for another day. This raises an interesting issue in cases where employers have actively advocated for a change of date for Australia Day.
Some employers have adopted a neutral stance on the issue of changing the date, but have still given employees the option to substitute the day so they can exercise their own prerogative or conscience on the matter. Other employers have adopted a more vocal and emphatic stance, publicly calling for Australia Day to be moved from January 26.
In the latter examples, many businesses are championing a “business as usual” approach in their workplaces on that date. These employers need to be very careful in implementing a policy permitting employees to swap dates, as this could be argued as applying undue pressure or undue influence on a specific employee.
Exhortations from management, such as saying things like, “We expect employees to do the right thing,” or “This is a time to show you are aligned with the values of the organisation,” should be scrupulously avoided.
Employers should emphasise that the decision to swap the public holiday is ultimately one for the employee and any choice made will be respected.
How will employees be treated if they choose to take the day off?
As this can be a somewhat divisive issue in our community, it’s likely that you’ll have employees who sit on either side of the fence when it comes to changing the date. In this instance, it’s important for HR and managers to consider what could happen if your organisation offers the chance to swap out the day and certain people choose not to.
These employees must not be subject to any adverse action by the employer, such as termination of employment, demotion or detrimental behaviours, for exercising that right.
It’s important that this is communicated clearly to all managers, to protect yourself from a legal perspective, but also to employees more broadly, to avoid cracks forming in your organisational culture.
Read HRM’s guide on how to manage divisive topics in the workplace.
While employers may want to send a public message about the date of Australia Day, a message with which many would agree, that cannot be at the expense of the right of an employee to take Australia Day as a public holiday if they wish to do so. That is a line employers need to be careful not to cross.
Michael Byrnes is a Partner at Swaab. A version of this article first appeared on Swaab’s website. You can view the original here.