This year, Australia Day falls on a Sunday. In all States and Territories, Monday, 27 January 2025 has been substituted as the public holiday for Australia Day. Where a substitute public holiday is declared, only the substitute day is generally regarded as the public holiday.
In this article, we outline what employers need to know regarding work performed over this upcoming long weekend, or if employees wish to ‘substitute’ the public holiday for another day, including if you have employees who do not wish to mark the occasion.
Australia Day substitute public holiday on Monday 27 January 2025
As Sunday, 26 January 2025 is not a public holiday, it is considered a normal working day, and public holiday penalty rates are not payable on that day, subject to the terms of any industrial instrument. Usual Sunday penalty rates under any applicable industrial instrument will apply for working on that day. If employees would ordinarily work on a Sunday but wish to have this day off, they need to apply for leave as per the usual process.
Public holiday entitlements will however apply to work performed on Monday, 27 January 2025, and permanent employees are entitled to the day off without loss of pay unless the employer makes a reasonable request for the employee to work. Refer to our previous article here for more information about when a request to work on a public holiday is reasonable.
Employers need to review any specific obligations contained in their enterprise agreement or applicable awards that may have provisions for a mandated substituted day off work or additional payments on public holidays.
Can the Australia Day public holiday be substituted to another day?
In recent years there has been significant debate about the Australia Day public holiday and whether this date should be celebrated. Some employees may also wish to swap public holidays for a day that better suits their personal circumstances or preferences. It is therefore important that employers are aware of the legal considerations in respect to substituting public holidays.
Relevantly, an employer cannot force their values and opinions onto employees by compelling them to substitute a public holiday, and an employer does not have to agree to an employee’s request to substitute the day. That is, any substitution is generally only permitted subject to agreement between the parties.
Employers can agree with employees to substitute public holidays for alternate days, only if the applicable award or agreement allows it.
Employees not covered by an award or agreement may also reach agreement with their employer to substitute a public holiday under the Fair Work Act.
The mechanisms for doing so differ depending on whether employees are covered by a modern award, enterprise agreement, or are award free and what provisions, if any, the applicable instrument contains.
If you require assistance regarding your obligations this coming Australia Day, please contact us.
Please note, our firm will be closed on Australia Day and the Australia Day Public Holiday next Monday.
