Can I choose to work on Australia Day or do I have to take the public holiday?

Employers — from supermarkets to big corporates — are giving staff the choice to work on Australia Day, despite January 26 being a public holiday.

The move comes as companies recognise “January 26 is not a day of celebration” and are giving workers the option “out of respect for all First Nations peoples”.

Prime Minister Anthony Albanese says it is a matter between an employee and their employer. 

So, if I want I to work, what do the rules say and what I need to know? Let’s take a look. 

What are the rules?

Public holidays fall under the National Employment standards and there is lots of information out there if you don’t want to work a public holiday. 

It says the type of employment — full-time, part-time, casual or shift work — needs to be considered as well as personal circumstances, any penalty rates or compensation that comes with a public holiday as well as the amount of notice that is given.  

When it comes to working a public holiday and having another day off, your award or agreement may already say you can do it if your employer agrees. 

But, even if you don’t have an award or agreement, you can still do it as long as your employer agrees. 

You can search for your award or enterprise agreement on the Fair Work Ombudsman website.  

The Fair Work Ombudsman adds:

“An employer must not exert undue influence or pressure on an employee in relation to agreeing to substitute a public holiday for another day or part-day.”

At the end of the day, the decision to work has to be agreed upon by yourself and your employer. 

While the focus is on Australia Day, the National Employment Standards covers workers on Good Friday, Easter Monday, Anzac Day, the King’s birthday in your state or territory Christmas Day, Boxing Day and any state or territory specific holiday. 

What companies are doing it? 

Among the big players to publicly announce their workers have a choice are Woolworths, Telstra, Wesfarmers, KPMG, BHP, Deloitte and Paramount. 

They’re allowing their employees to work on January 26 and switch it for a day off on another date, provided it’s approved by their manager.

With Woolworths making the move it means hundreds of thousands of workers now have the choice. 

Beverley McGarvey and Jarrod Villani from Paramount Australia told staff they acknowledged “January 26 is not a day of celebration” for all.

“We recognise that January 26 evokes different emotions for our employees across the business and we are receptive to employees who do not feel comfortable taking this day as a public holiday,” they said. 

The University of Wollongong is the first Australian university to give employees this choice.

The university says it made the decision “out of respect for all First Nations peoples”.

Will I get paid for working?

While you may be entitled to work, whether you get paid is another question, University of Technology Sydney’s Eugene Schofield-Georgeson says. 

He says it comes down to if there is a work-wage bargain in place that is needed under common law for an employee to paid. 

What this means is if you turn up to work on a public holiday, but there is no work to be done, then you may not get paid because the bargain doesn’t exist.

However, this is dependent on the type of worker you are, with penalty rates and other forms of compensation for those who work on public holidays.  

Mr Schofield-Georgeson says the move towards new agreements — particularly in the Non-Governmental Organisation sector — is seeing employees entitled to additional cultural sensitivity leave as well as the ability to reschedule public holidays. 

He says if there are any entitlements for taking the public holiday you would have to make sure they translate across to the alternative day you take.  

University of Sydney business school professor John Shields says the flexibility to choose to work on a public holiday is part of a trend — especially since COVID — of  employees feeling more control of when and where they can work. 

He says the upside is employees can consolidate their leave time and have longer and more sustained breaks. There are also plus sides for employers with less interruptions in work flow on public holidays. 

But while it may be seen as a win-win for all, Professor Shields says employers have to ensure they are meeting their duty of care of providing safe and non-threatening working environments for workers.