By Ashleigh Fechney*
I have received countless questions from people asking what they are entitled to over the recent Christmas and New Year break. Considering the Holidays Act 2003 has been around for over 17 years, it is concerning that people still do not know their rights.
Let me take some time to break down the rights and obligations of the Holidays Act 2003 during this time. Please read until the end, because there are additional provisions about payment calculations.
Over this period, we have four statutory holidays:
- Christmas Day (Friday 25 December 2020)
- Boxing Day (Saturday 26 December 2020, observed Monday 28 December 2020)
- New Years Day (Friday 1 January 2021)
- Day After New Years Day (Saturday 2 January 2021, observed Monday 4 January 2021)
Your employer can only require you to work a public holiday if it is otherwise a working day, and you have specific provisions in your individual employment agreement.
If you work any of these days, you are entitled to be paid time and a half for any hours worked. If any of these days are otherwise a working day for you, you are additionally entitled to an alternative day (day in lieu) for each day worked.
If you do not work a public holiday, and it is otherwise a working day for you, then you are to be paid for the day.
If you do not work any of these days, and they are not otherwise working days for you, then are are not entitled to any additional payments under the Holidays Act 2003.
What is "otherwise a working day"
Employees with fixed shifts can easily ascertain whether this would otherwise be a working day. The question simply is: Do you usually work Friday, Saturday and/or Monday?
If so, then it is usually a working day and you are entitled to the associated payments.
However, the Holidays Act 2003 does not exactly define what an otherwise working day is, which makes this question difficult for shift workers. In recent years, a number of employers have been required to backpay employees for unpaid holiday pay as they had incorrectly interpreted what an otherwise working day would be.
The Holidays Act 2003 does provide some factors for considering whether it would otherwise be a working day:
- Your employment agreement.
- Your work patterns and the employer's roster systems.
- Whether you work for the employer only when work is available (IE; if you are a casual employee).
- The reasonable expectations of the employer and the employee that the employee would work on the day concerned.
- Whether, but for the day being a public holiday, an alternative holiday, or a day on which the employee was on sick leave or bereavement leave or family violence leave, the employee would have worked on the day concerned.
Remember, your employer can only require you to work a public holiday if it is otherwise a working day, and you have specific provisions in your individual employment agreement. This means that if you have been required (not asked) to work a public holiday, there is a presumption that it is otherwise a working day for you.
Otherwise, to make it simple, the question I would ask is: If you look over your past three months of employment, do you work more Fridays, Saturdays and/or Monday's than you don't?
If so, then it is considered otherwise a working day and you are entitled to the associated payments.
Do I get payment for both the Public Holiday and the Observed Public Holiday?
If you are working both days, you can only receive the statutory holiday benefits from either the public holiday itself (Saturday) or the Observed Public Holiday (Monday).
However, things can get more complicated when considering the following situation:
I usually work Saturday's, but my employer was not open Boxing Day and asked me to stay at home. However, I was asked to work Monday; which isn't my usual working day. How should I be paid?
With respect to this issue, the Holidays Act 2003 provides that if the public holiday:
- falls on a Saturday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day.
- falls on a Saturday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Monday.
This means, the employee would be paid for Boxing day, and then paid as usual for any hours worked on the Monday.
What if I only work part of a Public Holiday that is otherwise a working day?
This is another common question:
I usually work Friday's, but because our company is open for shortened hours on New Years Day, I've been asked to work reduced hours. What am I entitled to?
The Holidays Act 2003 is silent on this issue. However, it appears to be well accepted that you will receive:
- Time and a half for hours worked.
- Time for hours not worked.
- Full day in lieu (no matter how many hours you work)
What if I'm on call on a Public Holiday?
If you are on call on a Public Holiday, which is otherwise a working day, then you may be entitled to an alternative holiday (day in lieu); irrespective of whether you are actually called into work. However, this does not apply to employees who are only on call for Public Holidays.
When considering whether you receive an alternative holiday, you must ask yourself: was the nature of the restrictions on your freedom such that you did not have a whole holiday? Some questions you may want to ask are:
- Were you required to stay at a certain location?
- Were you required to have your phone/pager on at all times?
- Were you prohibited from drinking or using any other intoxicating substances?
- Were you required to wake up at a certain time, or stay awake until a certain time, to ensure that you were available.
Otherwise, you are entitled to the same payments as described above for working, or not working, the public holiday.
Ordinary and average pay
Let me throw a spanner in the works: there are provisions that require that you be paid at the greater of your relevant or average daily pay. If you receive the same pay every day, this will not be an issue. However, if you work fluctuating hours or you receive a commission, your payment must reflect this.
The ordinary / average pay calculations apply to:
- Payments for public holidays not worked.
- Time and a half payments.
- Payment for an alternative day (day in lieu)
In all of the above sections, the legislation states you must be paid "not less than the employee's relevant daily pay or average daily pay for that day." While it does not state that the employee must be paid the greater of the relevant daily pay or average daily pay, as stated in other sections, by inference I believe this is the interpretation: why else provide two options?
This all comes with a caveat: check your employment agreements. There are provisions in the Holidays Act 2003 that allow for agreement to transfer all or part of a public holiday: and this is somewhat common for employees who work night shifts (see sections 44A and 44B of the Holidays Act 2003).
Don't worry. I work solely in Employment Law and hold a Master of Law (Hons), and it still took me almost two hours to compile this article.
If you believe your employer has not paid you correctly, you can read more from Fechney to learn how to raise a concern yourself or get in touch with her.
*Ashleigh Fechney is a employment advocate who is based in Wellington, and provides services for employees and employers New Zealand wide.