This year Australia Day falls on Monday, 26 January 2026 and is observed in all States and Territories.
Permanent employees who would ordinarily work on a Monday are entitled to take the day off on full pay unless the employer makes a reasonable request for the employee to work. Whether a request is reasonable will depend on the circumstances, including, but not limited to the nature of the workplace and position of the employee, the employee’s personal circumstances and whether they receive any additional pay for the work performed on the public holiday.
Employees can refuse to work on a public holiday on reasonable grounds or if the request to work was not reasonable.
A recent case involving BHP’s in-house labour hire company who unreasonably required employees to work on public holidays resulted in a fine $15,000 and compensation being awarded to 85 employees between $800 and $2400 each to be paid by the company.[1]
A request should therefore be made for any employees who the employer wishes to work on the Australia Day public holiday, with an opportunity to respond. Such requests should be reasonable and more than just implied (i.e. the request should be more than just rostering the employees to work on the public holidays and not discussing it with them).
Public holiday entitlements may also apply to employees who work on that day depending on the terms of any applicable modern award, enterprise agreement, or contract of employment.
Substitution of the Public Holiday
The observance of Australia Day has been a hotly contested topic in recent years. Some employees may prefer to substitute the public holiday for another day to align with their personal circumstances or preferences.
Generally, substitution of a public holiday is only permitted where the applicable modern award or enterprise agreement allows for it. Further, even if substitution of a public holiday is permissible under the applicable modern award or enterprise agreement, this typically needs to be by agreement between both the employer and employee.
Employees who are not covered by a modern award or enterprise agreement may substitute a public holiday by mutual agreement with their employer under the Fair Work Act. Where a substitution is agreed, the substitute day is treated as the public holiday for that individual employee, including pay, time off, and any applicable penalties that may apply. And conversely, where a public holiday is worked due to taking a substitute day at mutually agreed time, the employee should be paid as if it were an ordinary day.
If you require assistance regarding your obligations this Australia Day, please contact us.
Please note that our office will be closed on Australia Day, Monday 26 January 2026.
[1] Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372
