Public holidays are a welcome break from work, but not all public holidays are relevant or meaningful to everyone. You might wish to take a different day off for cultural, religious, or personal reasons. The good news is that you can ask to swap a public holiday for another day, but whether that happens depends on agreement with your employer.
Here’s what you need to know if you’re thinking of making that request
What the Law Says
The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (the Act) provide that employees are entitled to be absent from work on a public holiday. Importantly, there are no provisions of the Act that prevent an employee and employer to mutually agree to substitute a public holiday for another day.
This right to substitute is reinforced by many modern awards, enterprise agreements, and employment contracts.
If 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. However, this substitution must be genuinely agreed between the employee and employer.
Workplace Policies May Set Out the Process
Your workplace may have policies or procedures that clarify how substitution requests are handled in practice. These might set out who you should speak to (e.g. your direct manager or HR), how much notice is required, and what documentation (if any) you need to provide.
Some workplaces actively support substitution to accommodate cultural or religious observances. Others, particularly where operational demands are high, may have stricter parameters.
It’s always worth checking your employee handbook, contractual rights, enterprise agreement, or HR policy manual before making a request.
Can the Employer Say No?
Yes. A substitution is only valid where both parties agree. Your employer is entitled to refuse your request, and they’re not required to give a detailed reason, provided the refusal is lawful and non-discriminatory.
If your employer does not require any work to be performed on the official public holiday (for example, because the business is closed), they do not have to allow you to work on that day. Employees have a right to be absent from work on public holidays, not a right to insist on working.
Do I Have Any Recourse If My Request Is Refused?
Usually, no. If your employer refuses a substitution request, and has done so lawfully, then you do not have a legal entitlement to challenge the decision. A refusal, by itself, is not bullying, discrimination, or adverse action — unless it is accompanied by other unlawful conduct (e.g. if you’re denied a substitution request for reasons of religion or cultural background, while others are not).
If you believe your employer is consistently refusing requests in a discriminatory or unreasonable manner, you may wish to seek advice — from your union, a legal adviser, or the Fair Work Ombudsman.
What About Pay?
If a substitution is agreed:
- You will work the official public holiday at your ordinary rate (not public holiday penalties), because for you, it’s no longer a public holiday.
- You’ll take the agreed substitute day off and receive public holiday pay (i.e. your base rate for ordinary hours).
If your employer does not agree to a substitution, the original public holiday remains in place. If you’re a full-time or part-time employee who would normally work that day, you will still be paid at your base rate, even if you don’t work. Casual employees are only paid if rostered and required to work.
How We Can Help
If you’re unsure about your rights, worried about how a request has been handled, or think your employer may be acting unfairly, we’re here to help. At JFM Law, we regularly advise employees and employers on workplace entitlements, including public holiday substitution and related policies.
Call us on (02) 9199 8597 or email us to discuss any concerns you have about a request to substitute a public holiday. We’re happy to assist.
The information contained in this post is current at the date of editing – 23 June 2025.
