1. Payment for working on a public holiday
Anyone who works on a public holiday is entitled to be paid at a rate of time and a half.
If the public holiday is a day that they would normally work (for instance the public holiday is on a Monday and the employee usually works on a Monday), and they do work it, then they are also entitled to one days full paid leave (an alternative holiday) to take some time in the future.
If the public holiday falls on a day that is not a normal day of work for the employee, and they do work it, then they are entitled to be paid at time and a half but they do not earn an alternative holiday.
2. Payment if not working on a public holiday
The terms of the Restaurant Association individual employment agreement template sets out that employees agree to work on public holidays if requested by the employer.
However, if an employee would normally be working on the day that the public holiday falls, but it has been agreed that they have the day off, they are entitled to be paid the amount of pay that they would have received had they worked on that day (their relevant daily pay).
If the employee does not work on a public holiday because it is their normal rostered day off, there is no obligation to pay the employee for that day.
If you are not using the Restaurant Association employment agreement template you should check your own operation’s employment agreement to see what it says with regards to employee’s working on public holidays.
3. Closedown periods:
An employer can close down their business each year for a period of time (commonly Christmas/New Year) and require some or all employees to take their annual leave. If an employee does not have annual leave available, you may direct them to take the leave as unpaid leave, or provide other arrangements like allowing the employee to take leave in advance of their annual leave entitlement. You need to give your staff 14 days notice of any closedown period and you can only have 1 customary closedown in any 12 month period.
It should be noted that a public holiday that occurs during an employee’s annual holidays must be treated as a public holiday and not as part of the employee’s annual holidays. The employee is entitled to be paid for a public holiday if the holiday would have otherwise been a working day for the employee.
Refer to sections 29-35 of the Holidays Act 2003 for the legislation that covers closedown periods.
4. Special provisions relating to public holidays that fall on the weekend
There is special provision in the Holidays Act 2003 relating to Monday-ising public holidays when they fall on the weekend. This applies to Christmas / New Year public holidays as well as Waitangi Day and ANZAC Day. What this means is that these public holidays will be observed on Saturday or Sunday for workers who usually work on those days, but will be transferred and observed on Monday or Tuesday for other workers for whom the weekend days are not a regular day of work.
For reference: Refer to section 45 of the Holidays Act 2003:
If any of these public holidays:
(a) 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:
(b) 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:
(c) falls on a Sunday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
(d) falls on a Sunday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Tuesday.
An employee will still only be entitled to observe the public holiday on one day. So if for instance Christmas Day falls on a Saturday and an employee usually works on both Saturday and Monday (and works both days on the week of the public holiday), they will observe the public holiday on Saturday. Monday will simply be paid as a normal day of work (not at public holiday rates).
Remember that even if you chose to close over this period and your employees are taking their annual holidays they are still entitled to be paid for any public holidays that fall over this period if the public holidays would have been a normal working day for them. These days should not be taken from their annual leave entitlement.
5. Employees on call on public holidays have different entitlements depending on the nature of the call-out arrangement:
If the employee is called out, he or she is entitled to at least time and a half for the time worked, plus a full day’s paid alternative holiday (if it would otherwise have been a working day).
If the employee is required to restrict activities on the day to the extent that they have not enjoyed a full holiday, for example, if the employee is required to stay at home all day but is not called out, then the employee is entitled to a full day’s paid alternative holiday (if it would otherwise have been a working day).
If the employee is on call, but is not required to restrict activities, for example, if the employee can choose not to accept the call-out then entitlement to an alternative paid holiday would arise only if the employee accepts a call-out and the day would otherwise have been a working day for the employee.
If the day would otherwise be a working day for the employee, and they do not get called into work, they are entitled to relevant daily pay for the day. Any agreement for being on call would depend on the employment agreement.
Rights to an alternative holiday do not apply where the person called out has an employment relationship with the employer only on public holidays.
If you still have queries regarding public holidays please call the Restaurant Association Helpline on 0800 737 827 or email us on info@restaurantnz.co.nz.