By: Sian Gilbert, Dexter Cabal and Rebekah Johnson
At a glance
- A growing number of Australian workplaces are now offering flexible public holidays to recognise the diverse backgrounds, cultures and values of employees.
- These holidays are offered in lieu of public holidays currently on the calendar.
- However, there are limitations around this initiative depending on the nature of the employment.
- There are also many issues employers should consider before implementing a flexible public holiday policy.
Flexible public holidays
The reasons behind many of Australia’s current public holidays do not resonate for all employees.
Several of Australia’s public holidays are linked to Christian celebrations, such as Easter and Christmas. However, Australian Bureau of Statistics data shows that the number of Australians identifying as Christian is decreasing, religious affiliations other than Christianity are continuing to grow,1 and nearly 40% of Australians are reporting they have no religion at all.2
Other public holidays have become a focal point for value differences, most notably Australia Day.
Additionally, over a quarter of Australia’s population are people who were born overseas3, and many retain strong links to those countries and cultures.
To reflect and support the diversity of Australian workers, many employers are beginning to offer ‘flexible’ or ‘floating’ public holidays to their employees.
Flexible public holidays give employees the choice to substitute an existing public holiday for a date that is more meaningful to them. This “floating leave” could, for example, be used to swap Good Friday or Easter Monday for time off during Eid. As another example, the Australia Day holiday on 26 January could be swapped for Reconciliation Day in May, which celebrates the anniversary of the 1967 referendum.
Employee entitlements for public holidays and flexibility agreements
Employees are entitled to be absent from their employment on public holidays,4 which is an entitlement under the National Employment Standards (NES).5 An employer can only request that an employee work on a public holiday if the request is reasonable.6 An employee may refuse that request if the employer’s request is unreasonable, or their refusal is reasonable.7
If an employee is covered by an award or an enterprise agreement, they can only substitute a public holiday if there is a term in the award or enterprise agreement that permits the substitution.8
If an employee is not covered by an award or enterprise agreement, the employer and the employee may agree on a day to take as leave to substitute the public holiday.9
Leave Policy considerations
When constructing a flexible public holiday policy, there are various questions employers should consider, including:
- What types of days could employees swap for? Are only cultural or religious days of significance included, or could an employee opt for their birthday?
- How many public holidays can employees swap each year?
- When employees apply for leave approval, do they need to provide reasons or evidence with their request? Or will sufficient notice suffice so that the employer can make necessary arrangements for planning and resourcing purposes?
- Can deferred public holidays accrue?
- How will the policy be launched? Will employers provide training to their employees specifically about diversity and inclusion in the workplace?
- Will employees be consulted during the design process for the policy?
The pros and cons of flexible public holidays
Offering flexible public holidays is a contemporary initiative that aims to improve job satisfaction by fostering inclusive, flexible, diverse and equitable workplaces in which employees feel valued for their unique backgrounds.
However, this initiative is not without risk for employers and their insurers. For example, if a workplace implements a flexible public holiday policy, it needs to ensure the policy is not used to pressure employees to substitute a public holiday date. An employee should feel they can decline an offer without facing negative repercussions in the workplace.
Similarly, employers will need to ensure a flexible public holiday policy is not applied discriminatorily. Claims arising from allegations of workplace bullying or discrimination may lead to employers triggering their insurance policy if workplace disagreements about flexible public holiday leave cannot be resolved amicably.
Yet, despite the risks, implementing a policy that offers increased flexibility with public holiday entitlements can provide benefits for employers. As these policies reflect an organisation’s flexibility and promote work/life balance, employers can use the initiative to attract and retain employees. The policy can also help promote inclusion and diversity by celebrating all employees, which has been shown to lead to improved commercial and cultural outcomes.
[1] Australian Bureau of Statistics, Religious affiliation in Australia (Media Release, 4 July 2022) https://www.abs.gov.au/articles/religious-affiliation-australia
[2] Ibid.
[3] Australian Bureau of Statistics, Cultural diversity: Census (Statistics, 28 June 2022) https://www.abs.gov.au/statistics/people/people-and-communities/cultural-diversity-census/latest-release
[4] Ibid s 114(1)
[5] Fair Work Act 2009 (Cth) s 61(2)(h)
[5] Ibid s 114(2)
[6] Ibid s 114(3)
[7] Ibid s 115(3)