Part 2: Public holidays, sick days, and bereavement leave during annual holidays

We get a lot of questions from employees and employers over the holiday season.  We recommend that you check out part 2 of our FAQs below, before you head into the holiday season. Read part 1.

Can an employer require their employees to work on public holidays over the Christmas period?

All employees are allowed to have a paid day off on all the 11 public holidays in New Zealand.  These are also known as ‘statutory holiday days’ or ‘stat days’. 

An employer can require employees to work on public holidays, by recording that requirement in the employees’ employment agreements. 

An employer can also ask an employee who is not required to work if they would like to work.  The employee has a right to say “no” without being treated adversely. 

How are employees paid for working on public holidays?

When an employee works on a public holiday, then they will be paid their usual wage for the hours actually worked plus half of their usual wage for the hours worked (often called “time and a half”). 

In addition, the employee is also allowed to have another whole day off work, even if they only work some of their usual hours on the public holiday.  This is commonly known as a “day in lieu”.

A day in lieu will be paid at the employee’s relevant daily rate. 

When must a day in lieu be taken?

A day in lieu must be agreed between the employer and the employee, but an employer can require an employee to take their day in lieu by giving them 14 days’ written notice. 

An employee can ask an employer to pay them out for that day in lieu instead, if they did not use it within 12 months of becoming entitled to it.  An employer does not have to agree.

What happens if there is a public holiday during the time that an employee is already on annual leave? 

If a public holiday falls on a day on which the employee is already on annual leave, that day will not count as an annual leave day (if it would otherwise be a normal working day). 

What if an employee applies for sick leave or bereavement leave when they are already on annual leave?

If an employee has asked for sick leave or bereavement leave, when they are already on annual leave, then those days off will count towards the employee’s sick leave and bereavement leave entitlements, rather than the annual leave entitlements (if a normal working day for the employee).  

Can an employer require an employee to be on standby over a public holiday?

If an employer wants an employee to be on ‘standby’ just in case they are needed on a public holiday, then there must be an availability clause in the employee’s employment agreement.  An availability clause will require the employee to accept work on a public holiday if work is offered.  Without an availability clause, the employee can turn down any work offered on a public holiday, without being treated adversely. 

An employer will have to pay an employee for making themselves available, even if they are not needed.  This can be a good option for a business who cannot easily predict their staffing needs on a public holiday, but wants to ensure that they have staff on standby in case they are needed.   

Read more about availability clauses.

How do you work out what to pay an employee for an annual day of leave or a public holiday?

It can be tricky to work out exactly what an employee should be paid for a day of leave, or on a public holiday (especially if they have irregular hours).  We recommend that employers make use of payroll companies to avoid getting things wrong.

Calculate leave payments.

What happens if a public holiday day falls on a Saturday/Sunday?

If a public holiday falls on a weekend day, and that day would ordinarily be a working day for the employee, then that day is treated just like any other public holiday. 

If, however, a public holiday falls on a weekend day, and the employee does not normally work on weekends, then the employee’s public holiday entitlement will move to the following Monday.

If the public holiday is Christmas day, Boxing day, New Year’s day, or the 2nd of January the employee’s public holiday entitlement will shift to the following Tuesday, because there are two public holiday in a row.    

We recommend that employers use the flowchart available on the Government’s Employment website  

Do casual employees have different rules apply to them?

A casual employee will still be entitled to the same benefits as any other employee, if they work on a public holiday.  If you want a casual employee to work on a public holiday, you should clearly record that in their employment agreement.  A casual employee will be entitled to time and a half pay, and another day in lieu. 

Read more about different types of employees and their rights, ‘Casual, part-time, full-time: what differences matter?’

What if I have any other questions?

Leading law firms committed to helping clients cost effectively will have a range of fixed price Initial Consultations to suit most people’s needs in quickly learning what their options are.

We are experienced employment lawyers who can answer your questions, or help you to navigate any other issues you are having at work.