This article also appeared in the NZ Herald.
By EMA Senior Associate Sarah Lim
The office Christmas tree is going up, shopping malls are filling fast, and Mariah Carey is making her annual return – all signs that the festive season is well and truly upon us. Many workplaces are starting to slowly wind down and make plans for their operations over the Christmas holiday period.
At the EMA, our AdviceLine and Legal team often get the first taste of this seasonal cheer. We handle nearly 100 member queries daily, and as Christmas draws closer, questions about leave entitlements and public holiday rules are steadily increasing.
Many employers in New Zealand would also be aware that the Christmas holiday period is one of the busiest times for the employees’ leave requests. Especially for those in the retail space, the challenge of managing rosters and keeping business running smoothly over the holiday period is already looming.
The rules around holidays and leave under the Holidays Act 2003 can be tricky, and we know that many employers want to make sure that they get everything right during this festive season. These are a few of the most common queries we receive.
- When do I need to pay the employees time and a half? Over the Christmas – New Year holiday period, there are four recognised public holidays: Christmas Day, Boxing Day, New Year’s Day and the day after New Year’s Day. If your staff members work on any of these public holidays, they should be paid time and a half for all hours worked. This also applies to those who are specifically hired for the holiday period, though they would not get an alternative holiday for working on a public holiday.
- If the employees work half a day instead of a full day on a public holiday that falls on an ‘otherwise working day’, should we top up their pay? We get this question often, because if that employee had chosen not to work on that public holiday, they would have been paid for a full day (because that public holiday pay fell on an otherwise working day). In addition, that payment would have been more than what they would receive for working only a half a day on that public holiday (at time and a half). There is no legal obligation to top up their pay. In our view, that employee still gets a benefit for working a part-day on that public holiday because they would receive an alternative holiday for doing so, which they would not have received if they had not worked on that public holiday and instead received a full day of pay for that day.
- What if the employee leaves halfway through their shift on Christmas Day or Boxing Day? If, for example, an employee works in the morning and has to go home after lunch because they feel unwell, then they should be paid time and a half for the hours worked in the morning. Their absence in the afternoon should be treated as a public holiday not worked, instead of sick leave. This is because under the Holidays Act, public holidays take precedence, and employees can use their public holiday entitlement before exhausting their annual holidays or sick leave.
- If the employee agrees to work on a public holiday and then calls in sick, what can I do? If their absence is only for one day, the options for the employer are limited. Give them the benefit of the doubt; people can and do get sick over the Christmas period! However, if the employee is rostered to work multiple days over the Christmas holiday period and their absence continues for three days and more, you can always require them to provide a medical certificate at their cost.
- What about employees who are on call during the Christmas period but are not called upon to work? Case law tells us that if the restrictions placed upon that employee for being on call during the Christmas period are not significantly onerous, and not to the extent where the employee is not able to enjoy the public holiday, then they do not need to be paid time and a half for on-call hours or receive an alternative holiday for being on call on a public holiday.
These responses are intended to be general guidance for employers in New Zealand but, if you have any thorny questions, we recommend seeking specific legal advice tailored to your workplace.
Looking ahead, upcoming changes to the Holidays Act are set to make managing leave far less complicated, giving Kiwi workplaces greater confidence during future holiday seasons. These improvements reflect years of EMA advocacy to ensure practical, workable solutions for employers and staff alike.