With the PM Albanese declaring that Sept 22 will be public holiday for the ‘National Day of Mourning for Her Majesty The Queen' Clothing The Gaps has made a decision, with consultation with staff, to remain open out of respect for our Aboriginal and Torres Strait Islander Community.
"Out of respect for our ancestors Clothing The Gaps stores will remain open on the 22nd of September"
Laura Thompson (Gunditjmara) - CEO & CoFounder
Substituting Public Holiday Dates
We wanted to share with you some public holiday information that no-one is talking about! The possibility of negotiating swapping public holiday dates with your employer if you don’t want to mark the Sept 22, but still keep the public holiday benefits you may be entitled to.
Essentially, whether you can swap a public holiday for another day depends on your type of employment, the modern award or agreement you are employed under, or if your contract is ‘award free’, the Fair Work Act. Loads of, but not all, modern awards allow for substitution of public holidays if both the employer and employee agree to the arrangement.
There are some technicalities to be aware of and we encourage an open dialogue with your employer.
We encourage you to check your award (use the link below) and have a chat with the relevant people in your workplace to know your options around working on Sept 22 (and other public holidays that don't align with your values and cultural beliefs), and taking an alternative day off that you both agree on.
What am I looking for in my award?
Click here for a full list of Modern Awards. Once you find your award or agreement, click on the sub-heading 'Public Holidays'. You are looking for a clause around 'Substitution'.
For example, this is the clause in the General Retail Industry Award 2020 [MA000004]:
This is an opportunity to lead by your values, support social change and give your employees a voice. Chat to your HR supports and gather the info you need.
Does this mean I can do the same for the Jan 26 Public Holiday?
Jan 26, Invasion Day, Survival Day or Australia Day whatever you call it, can't be seen as anything other than a day of mourning for First Nation's Peoples.
Prime Minister Anthony Albanese has already ruled out changing the date so, if you are able to under your award/agreement and you and your employer agree, the same principle of substituting public holidays applies.
Change It Ourselves is a group that supports employees and employers to not take a public holiday on January 26 and instead, change the date ourselves through public action, without waiting for the government!
It's a great website to explore if you are an employee or employer that wants to support more inclusive public holidays. Check out their easy step by step framework so you too may be able to enact support for changing the date.
They have even created these stunning free posters (created in collaboration with Waanyi and Kalkadoon woman Keisha Leon from LEON Design) to download to support organisations and businesses to close.
This article published by The Madarin and written by Jackson Graham 'Public servants can swap holidays like Australia Day but not all agencies promote it' (Jan 20, 2022) talks how some "public servants are making use of little-known clauses in their employment terms that allow them to take the public holiday on another day in lieu" and how the Fair Work Act 2009 allowed enterprise agreements to contain clauses for public holidays to be substituted.
Resources: Fair Work Ombudsman and the Fair Work Commission
Make sure you check out this page on the Fair Work website Substitute public holidays for more information.
The Fair Work Commission is a great resource to find out more about your workplace entitlements, awards and agreements.
Getting support to change gazetted public holidays requires mass support and will be an uphill battle but, in the meantime we can empower ourselves and have conversations within our workplaces to change the date ourselves.
Disclaimer: This is not individual HR nor legal advice. We recommend that all individuals check your paperwork and communicate with your employer. Seek expert advice for your sector from the appropriate agencies.