Problems with public holidays

Confusion and/or exploitation of workers over public holidays worked over the Christmas/New Year period discussed at Reddit.

I work in a cafe which closes on public holidays. My employer told me I do not get paid for those public holidays, which I thought sounded like BS. I tried to question them on it, but I was told that because public holidays were always planned closures they weren’t covered by the holidays act (which basically means if you normally work a day that falls on a public holiday you get paid for it).

I had a look at my contract and the holidays clause just refers to the holidays act.

I know this borderline exploitation behavior is very common in hospitality – but before I go looking for legal advice and probably ruining what is otherwise a good relationship with my employer, does anyone have some insight into the situation? My employer has a pretty close relationship with her lawyers and has been very careful with their contracts, so I imagine if there’s a way around not paying for public holidays they’ve exploited it.

Relevant information:

Here is the Holiday’s Act 2003

Here’s the section regarding payment on a public holiday that would have normally been a working day

Here’s the section regarding what happens if the holiday falls on a day which is not otherwise a working day

Specifically, your employer, or her lawyer, is arguing that because the day is planned closure, those days are technically days which are not otherwise work days, which means under section 48, she is in compliance with the Holidays Act.

You should check your contract and see if there is anything on planned closures on public holidays, because I’m willing to bet there isn’t. How can you have planned closures when 5 of those 11 days aren’t even the same every year?

If there’s nothing in the contract about planned closures, and just refers you to the holidays act, then you are 100% legally entitled to pay.

Anecdotally I worked at a niche retail store for a while that closed from the 24th of December to 5th of January every year. This was written in the contract, and I was not paid for Christmas, Boxing day and the two New Years holidays, which I thought was fair enough

Here is the section explaining annual closedowns

Here is the section explaining that a closedown is to be treated as annual holiday leave for employees with annual holiday entitlement, and be paid for

Here is the section explaining that a public holiday must be treated as such if it occurs during an annual holiday

So yes, I should have been paid for those 4 days. I think it was just an unintended oversight by my employer, he was otherwise very insistent all his workers got all the paid leave they were entitled to. No hard feelings.

Some employers don’t know the Holidays Act and it’s sometimes complex requirements. Some do and rely on employee ignorance, and a few seem to rely on workers not complaining for fear of being given fewer rosters and hours.

 

6 Comments

  1. NOEL

     /  December 31, 2017

    Unfortunately today there are a lot of employers using the “my interpretation of the Act” overrides the pollies “intent” of the legislation.
    If the pollies really wany to do workers a service they should offer free legal oversight of employment contracts.

    • Kitty Catkin

       /  December 31, 2017

      They can go to CAB and have free legal advice there.

  2. J Bloggs

     /  December 31, 2017

    Usual caveats – I am not a lawyer, however, I do work in a vocational support role, so have some understanding of employee rights/employer responsibilities under the law.

    The employer is wrong on all counts. Its not the “planned closure” that is the relevant part, but the “otherwise working day”. So:
    – If the cafe would have been open on a monday, and the employee would have been expected to work on that monday, if not for the public holiday, then the employee is entiltled to the holiday pay.
    – If the cafe is never open on mondays, and the public holiday falls on a monday, then the employer doesn’t have to pay holiday pay.
    – If the cafe would have been open on a monday, but the employee never works mondays, then the employer doesn’t have to pay holiday to that employee, but does to the other employees who do work mondays.

    This is, of course, complicated by rotating shifts and rosters. But the underlying principle is the same – if the employee would have been expected to work on that day, had it not been a public holiday, then they are entitled to be paid for that day.

    Planned closure is about requiring the employee to use holiday leave, even if they might not have chosen to (e.g. a business that closes on christmas eve and doesn’t re-open until after new year can require the employee to take the days between boxing day and new year’s day as a holiday). This does not affect the employee’s entitlement to any holiday pay that would have been generated, had that been an otherwise working day.

  3. I spent the last 10 years working in 2 hospitality and tourism jobs. I was frequently rostered off on Statutory holidays and not paid. When I got into dispute over this and other issues I joined the union. I was put then under extreme pressure to leave the job but the union would only give me general advice, not take any action. I was the only union member on the site and they had no ‘clout’. I got a workmate signed up for the union before I left and she didn’t last much longer than me.
    My most recent job was on night shift, 11pm to 7am. Because my work day was deemed to be the day on which I started the shift I usually got nothing for Monday stat days because they would roster me off on the Monday night.
    I am sure some employers do not understand the Holidays Act. I am sure that many deliberately manipulate and misinterpret the Act to their own advantage.

    • Kitty Catkin

       /  December 31, 2017

      I once worked for a caterer-an Austrian, not a Kiwi. He made us work all day and took half an hour’s pay off for a break that we didn’t have the chance to take. He was too mean to use proper tables so we all had backache from working at ordinary kitchen ones (I think that the reason that when anyone went to the loo, they were there longer than usual was because we were sitting in there trying to ease our backs for a few minutes)

      I remember meeting one of the other workers later and talking about the inquity of the docked pay-but Otto (I think that he was called that) probably rightly assumed that we wouldn’t bother to go to all the trouble of trying to get this as we were only there for three days and it wasn’t worth the time and trouble to go after this small amount of money. We agreed that we’d never work for that miserable sod again, though.

  4. Kitty Catkin

     /  December 31, 2017

    A bus driver I know left the union after he worked out that he’d be having any payrises etc anyway so it was $7 a week for nothing that he wouldn’t have without paying for it.