The Employment Relations Authority has fined an employer $12,000 for failing to correctly pay employees their public holiday entitlements. The employer also failed to keep adequate wage, time, holiday and leave records.

The employer required employees to sign away their public holiday entitlements. The employment agreements stated that full-time employees acknowledge they would “not receive time and a half on a public holiday.” Part-time employees had signed employment agreements stating they would not qualify for holiday pay unless they had “worked 3 consecutive weeks on the same day as the Statutory Day.”

These employment agreements were inconsistent with the Holidays Act 2003. Employees are entitled to public holiday pay regardless of their employment agreement. The Authority held that requiring a part-time employee to have worked three consecutive weeks “on the same day as the public holiday” was unlawful. Employees are entitled to public holiday pay if the public holiday was an otherwise working day.

What is an “Otherwise Working Day”?

While there is no rule for what an otherwise working day is, employers must be practical and consider the following:

  1. (a)  The employee’s employment agreement;
  2. (b)  The employee’s work patterns;
  3. (c)  Any other relevant factors, including –
    • i.      Whether the employee works for the employer only when work is available;
    • ii.     The employer’s rosters or other similar systems;
    • iii.    The reasonable expectations of the employer and the employee that the employee would work on the day concerned.
  4. (d)  Whether, but for the day being a public holiday, the employee would have worked on the day concerned.

The Authority held that, in this case, if an employee had worked the relevant day at least once within the past six months, they were entitled to public holiday pay.

The employer was ordered to pay over $40,000 to its employees in holiday pay entitlements and fined $12,000.

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