There is no minimum period of time an employee has to be employed to become entitled to a public holiday and it does not make a difference if an employee is classed as casual, part time or full time.
All employees would be entitled to be paid for a public holiday if the public holiday falls on a day that would have been an otherwise working day for the employee. This means, but for the day being a public holiday the employee would have worked on day concerned. In other words, if it was not a public holiday, would the employee have been working on that day? If the answer is yes, they would be entitled to have the day off on pay; if the answer is no, they are not entitled to observe the public holiday.
What is an employee’s entitlement if they work on a public holiday?
Under the Holidays Act 2003, if an employee works on a public holiday, the minimum payment they should receive is time and half for the hours worked on the public holiday. For example, if an employee normally works 8 hours a day, but on a public holiday they only work 2 hours, the minimum payment they would receive for the day would be 2 hours at time and a half. This applies to all employees – wage and salary earners alike. Therefore, if the employer asks the employee to work on a public holiday, they should act in good faith and explain how this entitlement works to the employee so that they are aware of what they are agreeing to.
If the public holiday the employee worked on fell on a day that the employee would otherwise have worked even if it was not a public holiday, they would be entitled to an alternative holiday (a day off on pay at another time) regardless of how many hours they worked on the public holiday.
An employer can only require an employee to work on a public holiday if it is written into the employee’s employment agreement and the public holiday falls on a normal working day for the employee. In all other circumstances, the employer would require the employee’s agreement to work on a public holiday.
If I work a shift that spans two days, what are my public holiday entitlements?
Generally it is accepted that a public holiday runs from midnight to midnight. Therefore, if an employee works on any part of that calendar day (that is a public holiday) they are entitled to time and a half for the time worked on the day, and an alternative holiday (if the day the public holiday falls on would otherwise be a working day for the employee).
As an alternate option to the measures described above the Holidays Act 2003 allows employees working shifts that span two days to transfer the public holiday, by agreement with their employer, so that the public holiday covers one whole shift. The ‘day’ a public holiday is transferred to must be a period of 24 hours that begins or ends on the actual public holiday and includes the whole of a shift the employee is due to work.
When is an employee entitled to an alternative holiday?
Under the Holidays Act 2003 an employee is entitled to an alternative holiday if they work on a public holiday that is an otherwise working day for them. For example, if an employee normally works Mondays, Wednesdays and Fridays and they work for 1 hour on Easter Monday, they would be entitled to a full day off on pay at another time (an alternative holiday). This is because Easter Monday is an otherwise working day for them. This provision includes employees working shifts and some employees on call. Both types of employees get the full day off, even if they only work for a small part of the day.
There is no entitlement to an alternative holiday where an employee:
- Works on a public holiday and that day would not otherwise be a working day, or
- is on call on a public holiday but is not required to restrict activities, or
- is only employed to work on public holidays.
What should an employee get paid for an alternative holiday?
An employee receives their relevant daily pay or average daily pay for the day taken as the alternative holiday. Payment for an alternative holiday, depends on when the employee takes the day off, it has no bearing on how many hours the employee actually worked on the public holiday.
The alternative holiday can be taken at any time mutually agreeable to the employer and the employee. If the employer and employee cannot agree when the alternative holiday is to be taken, the employer may determine the date. The employer must have a reasonable basis for choosing when it is to be taken. The employer must give the employee at least 14 days’ notice of the requirement to take the alternative holiday.
If an employee does not take their alternative holiday within 12 months of becoming entitled to the alternative holiday, the employee and employer can agree for the alternative holiday to be exchanged for payment. In this instance, the payment for the alternative holiday is to be agreed between the employer and employee and must be paid as soon as practicable once the agreement has been made.
Alternative holidays do not expire, therefore, any alternative holidays that are outstanding when an employee’s employment ends, these are paid at the employee’s relevant daily pay, or average daily pay if applicable, for their last day of work.
Source: NZ Department of Labour Frequently asked questions