As with most legal questions, the answer to this one is, of course, ‘it depends’. In recent years we’ve seen organisations such as Deloitte, Woolworths, Telstra and Channel 10 (amongst others) make the news for allowing their employees to substitute public holidays and their entitlements for another day of their choosing.
Employers are allowed to request that employees work on public holidays, but in these instances, must ensure that employees are paid in accordance with the relevant award or agreement. Substituting or ‘swapping’ a public holiday for another work day at the employee’s request, however, is slightly different.
Firstly, award and agreement free employees may swap a public holiday for another day upon agreement with their employer, with no need for any pay adjustment. However, employees who are covered by an award or agreement can only swap a public holiday if the relevant instrument allows this to happen, without the need for the employer to make any financial adjustment. Alternatively, if the award or agreement does not provide for the substitution, the parties can still agree to the swap, but the employer is required to pay the employee any applicable penalty rates as set out under the relevant instrument.
With the increasing trend emphasising a strong desire for flexibility in the workplace, swapping public holidays for other days may be one such tool to consider, if this measure suits your business operations.