New Zealand: Happy holidays: the ‘Mondayisation’ of public holidays

By Tim Oldfield

As published in NZLawyer magazine

With effect from 1 December 2004, section 4(1A) of the Employment Relations Act 2000 was inserted, which added further guidance to the duty of good faith. Many commentators asked at the time whether you could, or should, legislate a relationship in this way.

Bearing in mind work is where most of us spend the most significant portion of our waking hours, it is not surprising that employment, and changes to employment laws, can have a big impact on our daily lives.

Employment and employment laws are inherently about relationships and managing those relationships to achieve business success. Of course, the legislation of relationships in a different sense has attracted huge media attention with the passage of the Marriage (Definition of Marriage) Amendment Act 2013, which received royal assent on 19 April 2013. This legislation allows same sex marriage and dominated media coverage of Parliament for some time. Indeed that change largely overshadowed another important employment law change.

The same day the marriage legislation received royal assent, important employment law legislation received the same treatment. The Holidays (Full Recognition of Waitangi Day and Anzac Day) Amendment Act 2013, provides for Anzac Day and Waitangi Day to be shifted to the following Monday if those public holidays fell on a weekend.

This "Mondayisation" already happens for the Christmas public holidays, but there was significant debate about whether it was appropriate to "Mondayise" holidays of national significance. Anzac Day and Waitangi Day were always observed on the days on which they fell, even if this occurred during the weekend, as they were considered to be sacred days in our national psyche. Employers were also concerned about the potential cost of the reforms. On the other hand, the status quo meant that most Monday to Friday workers missed out on a day off where the public holidays fell on a weekend, which happened every few years. It won't happen again until 2015.

Labour MP David Clark introduced a private member's bill to address the situation. While National did not support the Bill, it did not use its veto powers to prevent the Bill from passing with majority support, in spite of a Ministry of Business, Innovation and Employment estimate that the Bill would cost up to $200 million for each of the relevant public holidays.

The Government has the power, given by the House's Standing Orders, to veto any bill that would have a major impact on the Government's budget and expenditure plans. While the Government did not veto the "Mondayisation" Bill, it looks like it will use its power to veto a bill proposing to extend paid parental leave from 14 weeks to 26 weeks. So, once again, employment law is a significant source of controversy in our corridors of power.

The Holidays (Full Recognition of Waitangi Day and Anzac Day) Amendment Act comes into force on 1 January 2014. If one of those holidays falls on a Saturday or Sunday and the employee normally works on the day, the holiday will be observed on the day it actually falls. If, however, the holiday falls on a Saturday or Sunday and the employee does not normally work on that day, the holiday is transferred to the following Monday. Of course, the hapless Tuesday to Friday worker continues to miss out.

The courts have also been busy when it comes to making decisions about public holidays. On 13 March 2013 the Supreme Court issued a decision refusing leave to an employer to appeal a decision of the Court of Appeal which held that unrostered overtime could be taken into account as part of "relevant daily pay" for the purposes of the Holidays Act 2003.

In Postal Workers Union of Aotearoa Incorporated v New Zealand Post Limited [2012] NZCA 481, the Court of Appeal was satisfied that the Employment Court erred in concluding there was an onus on the employee to establish the pay he or she would otherwise have received on the day in question. Rather, the onus fell on the employer to meet the statutory obligation to pay the minimum entitlement on the day in question.

The Court of Appeal concluded that interpreted in accordance with the purpose of the Holidays Act 2003, section 9 of that Act required the employer first to establish or attempt to establish the amount of unrostered overtime that would otherwise have been received by the employee under section 9(l)(b)(ii). If that were not possible, then the employer was obliged to apply the averaging formula under section 9(3).

This decision was a culmination of a long running legal battle. It will result in higher payments for public holidays for employees who work overtime and increased costs for employers who have employees regularly working overtime. Taken with the recent "Mondayisation" legislation, workers' public holiday rights have certainly been enhanced.

Of course, if you regularly work overtime, work from Monday to Friday and wish to marry your same sex partner, then all your Christmases have come at once (no public holiday pun intended)!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.