Uniting on the 26th of January, Australia Day: Honouring the Past and Building an Inclusive Future

With Australia Day fast approaching, it is supposed to be a time of year where all Australians can come together to celebrate our nation, our culture, and our diversity. In recent times, however, there has been a growing backlash against the National Day of Celebration and #changethedate movement has been growing at an increasing pace.

The 26th of January (Australia Day) first became a federal public holiday less than 30 years ago in 1994 and historically marks the arrival of the first fleet of British ships in New South Wales way back in 1788. This date is broadly referred to as the beginning of the colonisation of Australia and for First, Nation Australians came with an incredibly difficult and traumatic change to their culture and way of life that still has ramifications to this date. As the movement to change the date grows, the arguments in favour of this are:

• That Australia Day should be a day where everyone can be united and celebrate; and
• A day that aligns with colonisation and the subsequent displacement, discrimination and atrocities committed against First Nation Australians is inherently divisive and, in some cases, traumatic. 

We are now seeing many individuals, groups and organisations are standing with First Nation Australians to cease celebrations on the 26^th of January out of solidarity and many employers are now unsure what to do if an employee would prefer to work as a result.  

Whilst the debate continues employers ought to remember the Fair Work Act 2009 (Cth) (the Act) and the National Employment Standards (the NES) to ensure they don’t accidentally breach any of their legal obligations. Thankfully, some flexibility allows employers and employees to agree on what best works for them. Under the Act, the NES and most industrial instruments employers and employees can agree to substitute a public holiday for another day. Practically this means that:

• The public holiday is treated like any other usual day, and if an employee works this day, they are paid their ordinary pay; and
• The employee is entitled to take the benefit of the public holiday (either a paid day off, or penalty rates) on a different agreed date (e.g., later that week or month).

Finally, with Australia Day falling on a Thursday it is common to see a high amount of unplanned absenteeism on Friday from employees seeking that elusive 4-day weekend, so tips for employers to better manage this include:

• Encouraging employees to substitute Australia Day for Friday the 27^th of January 2023 (giving employees a 3-day weekend, and reducing absenteeism);
• Encourage employees to take Annual Leave on Friday 27 January 2023 if they didn’t get time off over Christmas/New Year (giving employees a 4-day weekend and helping business plan workloads proactively); and/or
• Send a reminder to employees about the leave policy and when medical certificates are required for Personal/Carer’s leave; and

More and more we are seeing employers now offering their employees the choice to substitute the Australia Day public holiday however, as a reminder, it is important to ensure that any agreements of this nature are in writing and saved as an employee record for at least 7 years.

In my view, the date of Australia Day needs to change, and Australia should take this opportunity to select a date that:

• Gives us a guaranteed long weekend (I don’t think this needs any further explanation); and
• Is a time that can unite all Australians together to celebrate our diversity and look to a brighter, more progressive future.