In New Zealand, specific rules govern whether an employee can be required to work on a public holiday, along with the entitlements for doing so. These rules are primarily set out in the Holidays Act 2003 and the Employment Relations Act 2000.
What is a Public Holiday?
Public holidays are statutory holidays observed nationally, providing employees with a day off work with pay, provided it is a day they would ordinarily work. Common public holidays include Christmas Day, New Year's Day, Waitangi Day, and Anzac Day [Source: Holidays Act 2003, Schedule 1].
Some public holidays may 'Mondayise' if they fall on a weekend. This means that if a public holiday falls on a Saturday or Sunday, and the employee would not ordinarily work on that Saturday or Sunday, the holiday is transferred to the following Monday (or Tuesday if the Monday is also a public holiday). An employee is only entitled to one public holiday, whether it's the specific calendar date or the Mondayised date [Source: Holidays Act 2003, s 44(2)].
Understanding 'Otherwise Working Day'
A key concept in public holiday entitlements is whether the day is an otherwise working day for the employee. An 'otherwise working day' is a day that an employee would normally work if it were not a public holiday [Source: Holidays Act 2003, s 12]. This assessment typically involves looking at the employee's regular work pattern, employment agreement, and roster practices. For example, if an employee usually works Monday to Friday, and a public holiday falls on a Tuesday, then that Tuesday is an 'otherwise working day' for them.
Can an Employer Require an Employee to Work on a Public Holiday?
An employer can require an employee to work on a public holiday only if two conditions are met:
- The public holiday falls on a day that would ordinarily be a working day for the employee (an 'otherwise working day') [Source: Holidays Act 2003, s 46(1)].
- The employee's individual employment agreement or collective employment agreement specifies that the employee can be required to work on a public holiday [Source: Holidays Act 2003, s 46(1)].
If both of these conditions are met, the employer has the right to require the employee to work on the public holiday [Source: Holidays Act 2003, s 46(1)].
If an employment agreement does not specify that an employee can be required to work on a public holiday, the employer can only request the employee to work [Source: Holidays Act 2003, s 46(2)]. In such a situation, the employee may refuse the request, and this refusal cannot be treated by the employer as a breach of their employment agreement [Source: Holidays Act 2003, s 46(3)]. This means the employee cannot face disciplinary action or other adverse consequences for refusing to work if their agreement does not include a requirement to do so.
Entitlements for Working on a Public Holiday
When an employee works on a public holiday, their entitlements depend on whether it was an 'otherwise working day' for them:
- Payment for working: An employee who works on a public holiday must be paid at least time and a half (1.5 times their relevant daily pay or average daily pay) for the hours worked on that day [Source: Holidays Act 2003, s 50(1)(a)].
- Alternative Holiday (Time in lieu): If the public holiday was an 'otherwise working day' for the employee, in addition to time and a half pay, they are also entitled to an alternative holiday (sometimes called a 'day in lieu') [Source: Holidays Act 2003, s 56(1)]. An alternative holiday is an additional paid day off, which can be taken at a later date agreed upon by the employee and employer.
- If not an 'otherwise working day': If an employee works on a public holiday that is not an 'otherwise working day' for them (e.g., a part-time employee who doesn't usually work on that day), they are still entitled to be paid time and a half for the hours worked [Source: Holidays Act 2003, s 50(1)(a)]. However, they are not entitled to an alternative holiday because they would not have ordinarily worked that day [Source: Holidays Act 2003, s 56(1)(b)].
Resolving Disputes
If disagreements arise regarding public holiday entitlements, whether an employee can be required to work, or the payment received, parties can use the employment relationship problem resolution processes outlined in the Employment Relations Act 2000 [Source: Employment Relations Act 2000, Part 9]. This often begins with direct discussion between the employee and employer. If a resolution cannot be reached, mediation services are available through the Ministry of Business, Innovation and Employment (MBIE) to help facilitate agreement [Source: Employment Relations Act 2000, s 136]. If mediation is unsuccessful, the matter may proceed to the Employment Relations Authority, which is a specialist body that investigates and determines employment relationship problems [Source: Employment Relations Act 2000, s 159].
When to Seek Independent Legal Advice
It is recommended that individuals seek independent legal advice if they have specific questions about their employment rights and obligations regarding public holidays, including issues related to their employment agreement, entitlements, or dispute resolution processes. Guidance can be obtained from official government agencies like Employment New Zealand or Community Law Centres.