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Public holidays are an opportunity for employees to get time off work and enjoy a longer weekend or midweek break. Consequently, employment law protects these holidays. Likewise, employers must be careful when seeking to have their team work on a public holiday. While there may be valid reasons for doing so, businesses must be careful to comply with their employees’ obligations. This article will cover three mistakes businesses make around public holidays, including:

  • not having a valid availability clause when seeking to have employees work on a public holiday;
  • failure to provide alternative holidays; and 
  • forgetting about Mondayisation in New Zealand. 

Not Having a Legal Basis

As a starting point, employees should get public holidays off with pay. Employment legislation protects this right. Hence, employers need to tread carefully when they want their staff to work on a public holiday. Your business can only require employees to work on a public holiday if you have a legal basis for doing so. Accordingly, the employment agreement must include a clause that specifies employees are to work on public holidays. Also, your employees must otherwise have worked that day, per their usual schedule or typical roster.

Alternatively, suppose your business requires employees to be available to work on a public holiday that is not within their usual schedule or roster. In that case, there must be a valid availability clause within their employment agreement that provides for this. Availability clauses are tricky to draft. You should discuss with an employment lawyer if you are unsure whether you have a legal basis to require employees to be available on public holidays. Importantly, you must provide reasonable compensation to employees for making themselves available in this way. Also, you must be able to show you have genuine reasons based on reasonable grounds for an availability provision.

Simply put, if you do not have a legal basis for requiring employees to work on a public holiday, you are in breach of your legal obligations if you do so. This may open your business up to the risk of litigation and a personal grievance.

Failure to Provide Alternative Holidays

If you request an employee to work on a public holiday, you must offer them an alternative holiday. An alternative holiday is a day off at a different time that the employee can take instead of the public holiday. You must take steps to track alternative holidays and ensure that the employee can take one at a later date. It is not fair or in good faith to pressure an employee not to take an alternative holiday when they are entitled to one.

Note that if an employee is on call during a public holiday, and resultingly has to limit their activities on the public holiday, they are also entitled to an alternative holiday. Likewise, if the employee is required to be able to come to work at short notice in the event of high demand or an expected incident, then they have not fully enjoyed a day off. Consequently, your business should also provide them with an alternative holiday. 

Forgetting About Mondayisation

A final common mistake made by businesses is forgetting to account for the mondayisation of public holidays in New Zealand. When public holidays fall on a weekend, employees’ public holiday entitlement instead moves to the following Monday. Therefore, employees get the same number of public holidays, even if the year’s calendar means that public holidays happen to fall on more Saturdays and Sundays in that given year. Other countries do not necessarily have this same approach. Hence, international businesses should be aware of Mondayisation in New Zealand. 

Key Takeaways

Public holidays in New Zealand are protected by law. As such, employees should enjoy days off on public holidays. Some business mistakes to avoid regarding public holidays include not having a legal basis for requiring your employees to work on a public holiday. Your business should also ensure it tracks alternative holidays and makes sure to provide them to employees who are entitled to them. Finally, make sure not to forget about the mondayisation of public holidays that fall on a weekend day. 

For more information about public holidays in New Zealand, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Do you need a specific legal basis to require employees to work on a public holiday?

Yes, employees must have a clause covering public holidays and their requirement to work on those days. Alternatively, you might include a valid availability clause in your employment agreements. You should check with an employment lawyer if you have questions about the legal basis for requiring employees to work on public holidays.

What are alternative holidays?

An alternative holiday is a day off at a different time that the employee can take when required to work on a public holiday.

What is mondayisation?

Mondayisation occurs when public holidays fall on a weekend. For example, when a public holiday falls on a Saturday or Sunday, an employee’s entitlement to a day off shifts to the following Monday.

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