Australia Day work options limited by ‘industrial roadblock’ for employers

A family violence service in central Victoria is considering changing its employee bargaining agreement to allow staff the option of working on Australia Day.

It’s an issue cropping up across the country as growing numbers of Australians voice their opposition to the day on the basis it was not inclusive or sensitive to Indigenous citizens.

The Centre for Non-Violence has surveyed its staff, most of whom want the flexibility to work on January 26 and take an alternative day in lieu.

However its head of diversity and inclusion, Sammy Bowden, said the organisation had hit an “industrial roadblock”.

“We found out our EBA had Australia Day as a gazetted public holiday, which basically meant we could not ask our staff to work,” Ms Bowden said.

“The only way we can mitigate that is though entering a renegotiation and adding in a clause that basically specifies that, yes, we can ask our staff to work on an operational level on January 26.” 

She said a number of other central Victorian organisations were in a similar position. 

“It’s definitely a barrier that many others have hit and they’re sort of exploring alternate options as well in lieu of the gazetted public holiday,” Ms Bowden said. 

Organisations seeking change

January 26 is a public holiday under the National Employment Standards which apply to all employees covered by the national workplace relations system. 

“Whether an employer can offer their workforce the opportunity to work on Australia Day and swap the public holiday out for another day will really depend on two things,” Jessica Tinsley from the Australian Chamber of Commerce and Industry said. 

“First, we’ve got the business needs of the employer. It may not actually be feasible for a business to stay open on a public holiday.

“Secondly, the terms and conditions that apply to the employees – and this is really the more complicated factor.”

The level of flexibility employees have around substituting a public holiday might depend on the industrial instruments they are covered by and whether whether they include a special public holiday substitution clause.  

The chair of the Law Council of Australia’s Industrial Law Committee, Alice DeBoos, said most Australian workforces were able to offer a public holiday substitution because of the terms and conditions in most awards, enterprise agreements, and applicable to award-free employees. 

“There will be some enterprise agreements where, during bargaining, the amount of flexibility in the Individual Flexibility Agreement clause has been reduced, so it won’t allow employers and employees to make individual agreements about when work is performed,” she said. 

“For those people, unfortunately, it wouldn’t be possible, but that shouldn’t be a huge number.” 

Ms Tinsley said there were also some awards, like those covering aged care, that would not allow employees to substitute a public holiday.

Australian Business Lawyers and Advisors senior associate Tamsin Lawrence said her organisation had received quite a number of queries from employers about whether they could offer staff the opportunity to work on January 26. 

“Employees are perhaps raising it more frequently with employers or employers are reading about it in the newspaper,” she said.

“There’s been quite a bit of media attention around the issue and I think that’s perhaps prompted a lot more employers than usual to ask the question.”

Several large employers have made headlines for offering staff the option to work on Australia Day, including retail giant Woolworths. 

Public service workers also have greater flexibility around working on Australia Day, after the federal government reversed a restriction imposed by its predecessors.

Ms Lawrence said many of the employers her workplace had advised had provisions to offer a public holiday substitution.

“But for quite a number they’ve come unstuck with this issue,” she said. 

“They’ve looked at their award or enterprise agreement and found out, look, it’s not possible, I don’t have a provision, therefore I have to pay you penalty rates or loadings – it’s just not financially viable to allow them to do so.”

Ms DeBoos said employers who were coming up against a roadblock to substituting a public holiday would have to keep it in mind for the next round of bargaining and make sure it was on the list of items for change.

Ms Bowden said supporting the First Nations community was a huge aspect of the Centre for Non-Violence’s work.

“CNV has a strong stance on changing the date and looking at how we can better support our staff and our community so that there are provisions in place, so if staff do want to work, we can have that in there,” she said. 

“We want to be all inclusive and we recognise the impact that January 26 has on First Nations people.”

Call to change the date

Some employees at Horsham’s Aboriginal Cooperative were choosing to work on Australia Day, in favour of taking a different day off in the year.

Goolum Goolum general manager John Gorton said people choosing not to observe the public holiday made a real difference to the lives of Indigenous Australians.

“I think it gives us a bit of faith the whole notion of celebrating the landing of the First Fleet [is wrong]. There is a place for [commemorating January 26], but maybe Australia Day is not what the day is called,” he said.

Dja Dja Wurrung group chief executive officer Rodney Carter usually chooses to work on January 26, or to do things outside of the mainstream celebration of Australia Day.

“Historically for my people, it’s been about survival. And, I think, to celebrate, in our own sense, that we’ve overcome something pretty traumatic in Australian history that I think this majority still hasn’t got their head around,” he said. 

He believed it was time to change the date of Australia Day. 

“We’re not trying to take this sacred holiday away from people,” Mr Carter said. 

“It’s about trying to choose something together – and I think we can do it, but it’s complex – a day we can actually, genuinely, sort of celebrate.

“In 500 years we’ll look back and go, it’s really good, they eventually got that right.”

Seeking support

If you or someone you know is experiencing family violence, help is available.

Central Victorian resources include:

Other helplines include: