If you’re a business owner, you’ll probably be glad to see the back of the holiday period. For most employees, the glut of holidays that included Christmas, New Year’s and Waitangi Day, was a nice end to a challenging 2020 and a restful way to start 2021.
With the next public holidays around the corner (Easter Sunday is not a public holiday but Good Friday and Easter Monday are – April 2 and 5 respectively this year), here’s a quick guide to some of the legal issues around public holidays that often crop up:
- Employees are entitled to 11 Public Holidays per year if the holidays fall on days that would otherwise be working days for them.
- If any Public Holiday falls on a day that would NOT otherwise be a working day for the employee, the Public Holiday MUST be treated as falling on the following Monday.
- Where a Public Holiday falls on a day that WOULD otherwise be a working day for the employee, the Public Holiday must be treated as falling on that day.
- If a Public Holiday falls when an employee is on annual leave, the employee gets a paid Public Holiday if they would normally have worked on that day. The day should not be treated as part of the employee’s annual holiday.
A question that often arises is: How does one work out whether the Public Holiday falls on a day that would otherwise be a working day (“OWD”) for the employee? A fair question. The answer to this question will be easy in many cases; but there will be instances where the answer is murky, such as when an employee does not work the same days every week.
The Holidays Act helps us out with this, a little bit anyway. More importantly, employers and employees must engage with each other with a view to reaching an agreement about what is, in that particular employee’s circumstances, an OWD.
When doing so, they must take these factors into account:
- The employee’s employment agreement;
- The employee’s work patterns;
- Whether the employee works for the employer only when work is available;
- The employer’s rosters or other similar systems;
- The reasonable expectations of the employer and the employee that the employee would work on the day concerned; and
- 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.
In short, the goal is to ascertain whether an employee would have worked had they not taken holidays or annual leave on the day in question. It’s an “intensely practical exercise” and all of the employee’s relevant circumstances need to be taken into account.
Remember that the term “otherwise working day” appears regularly in the Holidays Act. An employee’s entitlement to paid public holidays, alternative holidays, sick leave, bereavement leave and family violence leave are contingent on the day being otherwise a working day for the employee. It is, therefore, a term that we recommend you become closely acquainted with.
The Act, of course, needs an overhaul. This is not new news. When will this happen? We know that the Government has accepted the 22 recommendations put forward by the task force (which was established in May 2018) and have announced that the legislation should be introduced by early 2022. While this is progress, this still means that the legislation will have to go through the full parliamentary process, and sufficient notice will need to be given to employers and employees. It could still be some time. But at least the first step to strengthening and simplifying the Holidays Act appears to be underway.
In the meantime, we will continue to help with making the complicated, simple. If you have any questions about Public Holidays, please contact us.