Legal loophole: The Kiwis who could be missing out on the majority of public holidays

Shift workers could be missing out.
Shift workers could be missing out. Photo credit: Getty

It's that time of the year when it seems like there is a public holiday every second week. And while that's great news for Monday to Friday workers, the feeling isn't as sweet for some shift workers missing out on several public holidays every year. 

One man who works Tuesday to Saturday in finance says he has missed around 10 holidays, since he started working at his company full time three years ago. 

The 23-year-old, who asked to remain anonymous, said he didn't even realise he was missing out until a colleague told him about it. 

He spoke to his manager about it who has now started giving him an extra day off, which he appreciates but he is still frustrated that his employer wasn't more transparent. 

"I feel hard-done-by and a bit frustrated that my employer wasn’t more transparent or honest about my options because they know my hours and can see my days off fall on public holidays."

He's upset that he's missed time with his girlfriend, friends and family all because he works different days than other people. 

And he's not alone. Due to a loophole in the Holidays Act, someone who regularly has Monday off could miss out on seven out of 11 public holidays a year. 

Under the Act, an employee who works on a public holiday gets time-and-a-half and a day in lieu or they get the day off if it's a day they would normally work. But for workers who have their weekends scheduled on those days, they only get their regular weekend and no extra time off or pay. 

Unite Union national secretary John Crocker told Newshub unfortunately it's an ongoing issue, leaving workers at the mercy of their employer. 

He said while some employers choose to give their staff time off, many more take advantage of the loophole. 

"There are a handful of employers we work with that will give a day in lieu if a public holiday falls on a day off but in our experience it's uncommon."

And with the nine to five Monday to Friday working schedule becoming rarer, he says more people will "miss out".

A 2020 survey by Statistics New Zealand found two-thirds of employees had worked at a non-standard time at least once in the last four weeks. Non-standard times are any work hours outside of 7am to 7pm, Monday to Friday. And for those that regularly have Mondays off it means less time off than regular employees, despite working the same number of hours. 

The issue is exacerbated by the increasing mondayisation of public holidays. 

"That's not solving the problem, it's fixing it for your nine to five workers, you know the ones that write the laws, so when Waitangi Day falls on a Sunday they get to take the Monday off but when Easter Monday, if you don't work Mondays you never get that one."

Crocker said workers are missing out on a lot of time off just because they work unusual hours. 

"That's a 2.4 percent pay difference between a worker that never works Monday and a worker who always works Mondays in the worst-case scenario."

Crocker said the solution is clear - give every full-time worker the same number of public holidays every year. 

"We think… that public holidays should be pro-rata based on the number of days someone works. So if someone works five days a week, they get all 11."

"It's a very easy solution and it would just introduce that fairness."

Workplace Relations and Safety Minister Michael Wood told Newshub the Holidays Act is meant to support employees to have a paid day off to observe days of national significance, but some people can miss out. 

"Public holidays provide employees with paid time off if the holiday falls on a day that would 'otherwise be a working day' for the employee. 

"The policy that underpins this provision in the Holidays Act is to support all employees to observe the days of national, cultural or religious significance, away from work. In practice, however some workers don't receive as many paid public holidays as those who work a traditional Monday to Friday working week.

"But if an employee normally works on the day of the public holiday's calendar date then their public holiday benefits apply to the calendar date. Also, all employees are entitled to four weeks of annual holidays each year and can be taken at any time agreed between the employer and the employee."

Minister Wood said the new Matatriki public holiday, which was announced early this year, will fall on a Friday giving "those workers who would normally miss out a guaranteed holiday". 

While the first Matariki public holiday will be held on Friday, June 24, 2022, it will then shift each year similar to Easter, but will most likely always fall between June and July.