Religious And Cultural Leave

The Australian Bureau of Statistics reports that nearly 30% of the Australian population was born overseas, and significantly more have parents or grandparents born outside Australia. This diverse population results in a consequently diverse workforce which comes from very different cultural, social, and religious backgrounds. As a result, not every worker’s religious or cultural holiday is a recognised public holiday in Australia. Employers should be mindful that their employees may want to take time off to celebrate important cultural or religious days throughout the working year. This article explains an employer’s legal responsibility regarding religious and cultural leave to employees.

Public Holidays

In Australia, employees are legally entitled to holiday leave on certain days. On these non-working days, employees generally receive full paid leave separate from their annual leave entitlement. Under the Fair Work Act 2009 (Cth), employees have a legal right to refuse to work on public holidays. Still, an employer can legally ask an employee to work a public holiday shift if the request is reasonable. An employer must consider the following factors before deciding whether a request is reasonable:

  • The worker’s personal circumstances including family responsibilities;
  • Available penalty rates;
  • Workplace needs;
  • The nature of the employee’s work;
  • Salary includes public holiday work;
  • Whether the employee is casual, part-time or full-time; and
  • The notice provided to and from the employee.

Those workers who agree to work on public holidays receive penalty rate pay over their base pay. A worker can refuse the request on reasonable grounds.

Date and types of public holiday vary according to the specific state or territory, but these days are generally held to mark cultural, religious, or civic observances. There are several significant civil national public holidays, specifically Australia Day on 26 January and Anzac Day on 25 April. While Australia has been a secular country since its federation, some public holidays follow the Christian religious calendar. For instance, Easter and Christmas are major public holidays in the workplace, and many companies close over the Christmas period.

Although there is a strong historical practice of public holidays to mark Christian events, the percentage of Australians who identify as Christian is falling. It is becoming more common for Australians to report that they have no religious affiliation. At the same time, a growing number of Australians practice religions other than Christianity. These employees celebrate holidays such as Lunar New Year, Ramadan, Diwali, and Hanukkah.

Australian employers are not legally obligated to provide additional leave for other religious or cultural holidays. However, embracing cultural and religious practice can benefit a business through improved workplace morale, job satisfaction and employee productivity. An employer should expect that some employees will want to take leave during periods important to their cultural and religious background.

An employer should be aware that it is unlawful to unreasonably refuse a request for annual leave. In addition, workplace religious or cultural discrimination is illegal under both the Fair Work Act and state and federal discrimination law. As such, refusing a leave request for a religious holiday may be a breach of an employee’s workplace rights. As a broad principle, employers should provide reasonable accommodations whenever possible for employees to fulfil their religious obligations, including granting leave for these occasions. Alternatively, an employer may choose to provide flexible work arrangements for employees who wish to observe traditions or requirements of cultural or religious occasions within the workplace. For instance, an employee may prefer to work from home or change their work hours during religious holidays.

There is additional scope for employers to demonstrate that they are supportive of a diverse workplace. Increasingly, employers are acknowledging and celebrating non-Christian religious occasions in the workplace. These activities can be tangible evidence of the workplace’s desire to be inclusive and culturally aware. Management should consider carefully how to best implement any changes to ensure that the workplace is welcoming to everyone. 

It is advisable to incorporate diversity guidelines into workplace policies to emphasise the business’ commitment to protect employees from harassment or discrimination. The standard policies should also outline how employees can request leave for cultural or religious holidays.

Floating Public Holidays

Employers may wish to support their employees by providing additional leave to allow for diverse religious and cultural occasions, but this will have a financial cost on the business. Alternatively, the employer can agree that an employee can utilise recreational leave to celebrate these occasions. 

Some larger employers in Australia have implemented a “floating public holiday” policy. Under this scheme, employees can substitute certain public holidays for other dates with religious or ceremonial significance. For example, an employee who does not celebrate Easter can arrange with their manager to have the Lunar New Year as a designated leave day. As cultural holidays are set, the business should not have difficulty planning around the employee’s leave.

An employer can improve workplace morale by accommodating their employee’s religious and cultural needs. Please contact Go To Court Lawyers if you require legal advice or representation.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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