26 January marks a day of dispossession for Australia's Indigenous population and to celebrate that day as a national holiday is more than a little insensitive. That's the basis for the `change the date' movement which is asking employers, musicians, radio stations and anyone in charge of the celebrations to find another date. Employers across the country, Marque Lawyers included, are getting on board. That raises the question can an employer ask their employees to work that public holiday?
Strictly speaking, employees are entitled to be absent from work on a public holiday. An employer can request that they work it, but that request must be `reasonable' and, if it's not, the employee can refuse the request. The question of reasonableness ordinarily takes into account a host of considerations including the business' organisational requirements, whether the employee would have expected the request, the employee's personal family circumstances and notice of the request etc. We'd be interested to see what the Fair Work Commission would think of a request that employees work the day in support of a political campaign but wouldn't expect it to pass the test. That means employers are left to ask their employees to get on board and the decision on changing the date will be left to them. Demanding they work the day won't go down well. Part of changing the date means Australia Day is celebrated another time. That means any employer asking its employees to work the day as part of the cause should provide them with time off in lieu. If the employees are Modern Award covered, specific obligations around documenting that arrangement in writing might apply.