Today, the Queen Elizabeth II Memorial Day Act 2022 came into force, after receiving royal assent yesterday. The Act’s purpose is to provide for “a day of commemoration to acknowledge the long and dedicated service of Her Majesty Queen Elizabeth II to New Zealand”.
So, in the interests of a timely refresher, please see below the key obligations this coming Monday.
Working on a public holiday
Employees are entitled to a paid holiday if a public holiday falls on a day on which they would otherwise work.
However, employers may require employees to work on a public holiday if the holiday falls on a day on which they would otherwise work, and the employee is required to work on the public holiday under their employment agreement. Some employment agreements do not contain the requirement to work on public holidays when required – which can be problematic if employees do not wish to work.
Employees may, of course, agree to work on a public holiday that is not otherwise a working day for them, or that is otherwise a working day, but their employment agreement does not include a requirement to work on public holidays.
So, what is an otherwise working day?
An otherwise working day means the day that the employee would have worked, were it not for the day being a public holiday. For example, if Tess works Monday to Friday every week under her normal hours of work, then Monday will be otherwise a working day for her. If her contracted days/hours (and assuming her contract reflects reality) are Tuesday – Saturday, Monday will not otherwise be a working day.
While this may seem straightforward, in reality, it is often complicated, particularly for rostered workforces, and other workforces with variable days and hours of work.
If it is unclear whether the relevant day is otherwise a working day for all/some employees, section 12 of the Holidays Act 2003 requires the employer and employee to seek to agree on that issue with reference to a number of factors, including:
- the employee’s employment agreement
- the employee’s work patterns
- whether the employee works for the employer only when work is available (for example, a casual employee)
- the employer’s rosters (or similar systems)
- reasonable expectations of both parties as to whether the employee would have worked on that day
- whether, but for the day being a public holiday, the employee would have worked on that day.
If the employee would otherwise work any amount of time on the relevant day, that entire day is to be treated as an “otherwise working day”.
Employers may wish to consider instructing employees that they are not to work on a public holiday unless specifically required to do so – to avoid any disputes around entitlements.
Calculating public holiday payments
If an employer requires an employee to work on a public holiday that falls on a day on which they would otherwise work, the employee is entitled to be paid the portion of their relevant daily pay or average daily pay that relates to the time they actually worked on the day plus half that amount (commonly known as “time and a half”). They will also be entitled to a whole paid working day off as an alternative holiday (even if they did not work a full day on the public holiday).
If an employee agrees to work on a public holiday that does not fall on a day on which they would otherwise have worked, they are entitled to be paid time and a half for all hours they work on the public holiday, but they are not entitled to an alternative holiday.
Note, if the public holiday is not otherwise a working day for the relevant employee, and they do not work on that day in reality, they are not entitled to be paid for that day.
Public holidays can be challenging to navigate for many employers, especially when different staff members may have different entitlements. The Holidays Act 2003 is currently under review, and amending legislation is expected to be introduced in 2023. However, for now, the Holidays Act 2003, despite its pitfalls, remains in place.
For more information
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