As the debate continues about changing the date of Australia Day, many employers are asking the question: Can I swap a public holiday for another day (substitution day)?
Employers can come to an agreement with individual employees on the substitution of public holidays for another day, but it’s important to note that public holidays are entitlements under National Employment Standards, so this must be done correctly.
Whether your workforce is covered by an award, enterprise agreement or another agreement, these substitutions may be made.
As the entitlement of a day off is intended for a public holiday as specified by the Federal or State Government, the request for an alternative day off is not a right or entitlement. Employers can reasonably refuse an employee’s request for exchange if it does not suit their operational requirements.
Importantly, if a public holiday has been appropriately substituted, then the substitution day is the only day regarded as the public holiday and will attract any applicable penalties and not the original public holiday date.
If an employer was to require an employee to work on a day that had been agreed to be the substitution day (for example the employee was required to work due to an urgent manufacturing order), this would attract the public holiday penalties that would have applied on the public holiday had it not been substituted.
Alternatively, if an agreement to substitute has been made and the employee works the original public holiday date this would be paid at normal pay as the penalties will only apply for the substituted public holiday.
Clear communication with your people is key. Make sure all dialogue regarding exchanges or refusal is documented and there is a good process and rationale to support any decision that is made.
Our Business Advice Hotline is available to members of the South Australian Business Chamber and can assist with these issues. Call us on (08) 8300 0000 (select option 1).
