Know your holiday rights as Christmas approaches

Ready for a break?  Q&A about booking leave, working on public holidays and days-in-lieu.
Ready for a break? Q&A about booking leave, working on public holidays and eligibility for days in lieu. Photo credit: Getty.

With the silly season just around the corner, employees ready for a break are wise to discuss their Christmas plans with their employers in advance and get their annual leave booked in.

All employees are entitled to enjoy four weeks of R&R each year, but as some industries require staff to work on public holidays and others enforce a closedown period, understanding leave entitlement can be challenging.

Newshub spoke to a payroll expert, Employment New Zealand and a lawyer to understand the basics of annual leave entitlements. 

Q. I work part-time, how can I make sure that my leave is calculated at the correct number of days and/or hours?

Employers are obliged to ensure part-time staff are given the correct leave, just like full-time employees. However, the Holidays Act defines annual leave in weeks which can make things tricky. 

FlexiTime Chief executive Robert Owen said that there are two ways of working out what a week means for part-time employees: one based on the hours they usually work and another based on days. 

Annual leave calculation example - based on number of days

"Say the employee works 10 hours on Monday and five hours on a Tuesday and a Wednesday.  

"If 'days' are used to define the week, when taking a day's annual leave, [the employee] would be paid for one-third of a week, regardless of which day is taken," Owen said.

Annual leave calculation example - based on number of hours

"If hours are used to define the week, [under the example above], if the employee takes a Monday off, they would be paid for 10 hours out of the 20 hours, or half a week, [while] if they take a Tuesday or Wednesday off, they'll get paid a quarter of a week for each day," Owen confirmed.

Employment New Zealand said the best course of action is for employees to discuss annual leave before starting a new job. 

"At the start of employment and each time there are changes to the employee's work pattern, employers and employees must discuss in good faith what the four weeks' annual [leave] looks like for [that] employee, and update the employment agreement accordingly," a spokesperson said.

Q. My employer has asked me to work certain days over the Christmas period - am I obliged to do so?

Employment law states that annual holidays are to be agreed between the employer and employee. It also states employers must not unreasonably withhold leave.

Michael Robinson, a lawyer at Turner Hopkins, said that if an employee is required to work on public holidays, their employment agreement should make this clear. 

"An employee may be required to work on a public holiday, [if it] falls on a day that would otherwise be a working day for the employee, but only if the requirement to work on a public holiday is contained in the employee's Employment Relations Agreement," Robinson said. 

Employment New Zealand said that some companies have a customary close down period and may require employees to take annual leave during this period.

"[This is acceptable], as long as they give employees 14 days' notice," a spokesperson confirmed.

  Q. If I work on a statutory day, does this automatically entitle me to a day in lieu?

Another common question is how an employee is compensated if they work on a public holiday, such as Christmas Day or Boxing Day.

Robert Owen said that while not clear-cut, in most cases, the employee is entitled to a day in lieu.

"If the statutory day is an 'otherwise working day' (OWD), which is a day the employee would normally have worked, the employee is entitled to a day in lieu."

Because the employee worked on the day, it's reasonable to assume that they had an expectation it was a day they would have worked - however other relevant factors in this situation include whether the employee works only as and when required and whether there was a pattern of the employee working on the day concerned.

"In this case, I would suggest that the employer discuss, in good faith, with the employee the requirement to work on a statutory day beforehand and agree whether the employee will receive a day in lieu," Owen suggested.

The Employment New Zealand website states in certain situations, employees would also qualify for more money. 

"If an employee works on a public holiday which is not an 'otherwise working day' for them, they must be paid for the hours they worked at no less than time and a half, but they are not entitled to an alternative holiday," the website states.

 Q. How can employees use annual leave days to their best advantage? 

As the Holidays Act bases annual leave on number of weeks, employees with changing work patterns may find this an advantage.

"If the hours or days [worked] per week increases in the period before annual leave is taken, then the weekly rate has increased.

"We often see an increase in hours worked for casual workers in hospitality businesses in the weeks leading up to Christmas, as for these employees, the weekly rate has increased, meaning that annual leave taken immediately after the busy period would be paid at a higher weekly rate," Owen said.

In terms of getting the most benefit from statutory days, a part-time employee who regularly works on Monday is likely to receive more statutory days than a person who works on other days.

"For most of the country, next year [2020], six out of 11 statutory days fall on a Monday.

"If Monday isn't an 'otherwise working  day', then [the employee] will likely receive nothing for those public holidays," Owen said.

How to take the longest break for the lowest number of leave days

Looking forward to 2020, savvy employees wanting to get the longest continuous period of time off for the least amount of leave have the opportunity to turn 11 days' annual leave into over a month of time off (36 days including weekends and public holidays).  Here's how:  

  • Anniversary Day (Auckland): Monday, 27 January.  By booking in one day's annual leave on Friday, 24 January or Tuesday, 28 January, Aucklanders can enjoy a four-day weekend.   As most regional anniversary days fall on either a Monday or a Friday, the majority of Kiwis can book one day's leave in return for four days' off.
  • Waitangi Day: Thursday, 6 February.  By booking in one annual leave day on Friday, 7 February, employees can enjoy another four-day weekend.
  • Easter: Friday, 10 April to Monday, 13 April.  By booking in four annual leave days on Tuesday, 14 April to Friday, 17 April, employees stand to gain a cooler 10 days' off before restarting work on Monday. 
  • Queen's Birthday: Monday, 1 June. By booking one day's leave either side of Queen's Birthday weekend, employees can receive a further four days' off, ideal for booking a winter escape.
  • Labour weekend: Monday, 26 October.  As with Queen's Birthday, Labour weekend gives employees another chance to increase holidays with a four-day weekend, booking one day's leave on either Friday 23 October or Tuesday 27 October.
  • Christmas: Friday 25 December, Monday 28 December (observed), Friday 1 January 2021, Monday 4 January (observed).  Receive 10 days' break in return for three days' leave booked for 29 to 31 December 2020.

To avoid doubt, employees are encouraged to look at their most recent employment agreement to confirm their normal working days, any obligation to work on statutory holidays and compensation to be provided by their employer.

With less than five weeks' to Christmas, it's important for employees to plan ahead and discuss plans and expectations with their employer ahead of time.