Entitlements For Public Holidays

Entitlements For Public Holidays
There have been a significant number of calls in January regarding confusion about employee's entitlements to paid Public Holidays. Below are general guidelines for employee's entitlements.

A big cause of confusion was that Christmas Day and New Years Day fell on a Sunday.
General
Public holidays for Christmas Day and New Year's Day were observed on Sunday for some Employees and on the Tuesday for other Employees.

An employee cannot be entitled to more than four public holidays over the Christmas and New Year period, regardless of their work pattern.
And please be aware that some employees will have been entitled to only three paid Public Holidays over the last festive season, others will only have been entitled to two, some to one and some to none.

Working out the employee's entitlements, on Public Holidays:

Christmas Day (Observed 25th Dec Sunday or Tuesday 27th Dec)
Step 1
Determine whether Sunday the 25th of December 2011 was a 'normal' day of work for Bob Smith.
As a first step you need to look at each employee individually to decide what their 'normal' days of work are. Your employees may have different days of work and the public holidays may not be observed on the same day by all of your employees. There may be several groups of Employees who share the same fixed, or regular days of work and you can group the Employees into, say 4 or 5 categories. For these Employees the rules are relatively straight forward. Some Employees work very irregular days of work and the rules need careful consideration.
Unfortunately, 'normal' working days are not always clear. The Holidays Act uses the phrase 'otherwise be a working day' (we have said 'normal' working day for the sake of readability but it is not strictly the correct word to use). The Act says that if it is not clear whether a day would otherwise be a working day for the employee, the employer and employee must take into account the factors listed below with a view to reaching agreement on the matter.
(a) The employee's employment agreement:
(b) The employee's work patterns:
(c) Any other relevant factors, including:

• (i) whether the employee works for the employer only when work is available;
• (ii) the employer's rosters or other similar systems;
• (iii) the reasonable expectations of the employer and the employee that the employee would work on the day concerned.

(d) whether, but for the day being a public holiday, the employee would have worked on the day concerned.
If Bob works alternate Sundays, and was rostered to work on 25th December, Sunday was Bob's normal day of work. (His employment agreement, work pattern and expectation was that he would work on the Sunday concerned).
If Bob works on a rolling roster so that his days of work change each week, the parties may agree that 'normal' days of work are the days actually worked in any given week. Alternatively, the parties may agree to look back at a pattern of work, (say, the previous 5 weeks – although there is no prescribed number of weeks) and if Bob worked 3 or more Sundays over those 5 weeks, then Sunday may be deemed to be a 'normal' day for the purpose of when Christmas Day is to be observed, and what payment is to be made. If he worked 2 or less Sundays, Sunday may not a 'normal' day of work for him at this time and the Christmas Day public holiday for this employee may be observed on the Tuesday.
Whatever approach is taken, it should be consistently applied to every public holiday and every employee, or every group of Employees with the same normal days of work. The problem with the concept of what is 'normal' or an 'otherwise working day' is that in some cases there is no easily found 'correct' answer. Trying to reach an agreement with the employee for a consistent approach, is the best way forward. It may be worthwhile to also check payroll records to determine how this has been handled previously. However, if you are uncertain, we recommend that you seek advice. If there has been no agreement, you can ask a Labour Inspector to make a determination. It is important to get it right in order to avoid an underpayment or overpayment situation, which could compound over time.
Some worked out examples follow:
Option A
Sunday is a 'normal day of work', the Christmas Day public holiday would be observed on Sunday 25th December, so what are the entitlements?
A1 Bob worked on 25th December - Entitled to 'time and a half' for the hours worked on the public holiday, PLUS a whole alternative holiday (to be taken later)[ Payment may vary depending on the day taken].
or
A2 Bob didn't work on 25th December (you closed? Or Bob was given the public holiday off work (in a period of annual holiday) or did you tell Bob he was not required to work?) – Entitled to a paid day off work (paid at his flat or ordinary rate 'relevant daily pay').
Or Option B
If you decided that Sunday 25th December is not a 'normal day of work' for Bob (perhaps this was his regular rostered Sunday off), what are the entitlements?
B1 Bob worked on 25th December. If the Sunday is not a normal day of work, the public holiday for Bob will be observed on the Tuesday, if Tuesday is a normal day of work for him, Therefore the Sunday is paid out as an ordinary day of work (flat rate of pay) for Bob and the public holiday benefits (Time and a half and an alternative holiday to be taken later if worked, or a paid day holiday if not worked) will be observed on the Tuesday the 27th of December.
If Bob worked on Sunday 25th December (but does not normally work Sundays) and he does not work on the Tuesday, Bob must be paid time and a half for working on the Sunday for the Christmas Day public holiday, but is not entitled to an alternative holiday to be taken later. [If he actually works on the Tuesday as well as the Sunday, the public holiday is observed only on the Tuesday. In this case, he would be paid for the hours worked at normal rate for Sunday 25th and time and a half for the hours worked on Tuesday 27th December. He would not receive an alternative holiday as he does not normally work on Tuesdays.]
or
B2 Bob does not work on Sunday 25th December. He is not entitled to any public holiday benefits in respect of Sunday.
Boxing Day, 26th December (Monday)
Step 1 determine whether Monday is a 'normal' working day for Bob.
Option A - If Monday is a 'normal' day of work for him
A1 If Bob works on Monday 26th December - Time and a half for the hours worked on the Monday, PLUS an alternative holiday to be taken later.
or
A2 If Bob doesn't work on Monday 26th December - a paid holiday at the relevant daily rate
Or Option B
If Monday is not a 'normal' day of work for Bob
B1 If Bob works on Monday 26th December - Time and a half for the hours worked (but no alternative holiday)
Or
B2 If Bob doesn't work on Monday 26th December - he is not entitled to any public holiday benefits.
Tuesday 27th December
Step 1 determine whether Sunday is a 'normal' working day for Bob.
If the Sunday is a normal day of work Bob, the Christmas Day public holiday will be observed on the Sunday and Tuesday will be an ordinary day of work.
Or
Step 2
If Sunday 25th Dec is not a normal day of work for Bob, the public holiday will be observed on the Tuesday 27th Dec.
Is Tuesday 27th a normal day of work for Bob?
Option A - If Tuesday 27th Dec is a normal day of work for Bob:
A1 – If Bob works on Tuesday 27th December. He is entitled to time and a half for the hours worked on the public holiday and time and an alternative holiday.
Or
A2 If Bob doesn't work on Tuesday 27th December, he is entitled to a paid public holiday at his relevant daily rate.
or
Option B - Tuesday is not a normal day of work for Bob-
B1 If Bob works on Tuesday 27th December – he is entitled to time and a half for the hours worked on the Tuesday (unless he actually worked on the Sunday as well and was paid at time and a half for the hours on the Sunday, in which case he will only get paid time and a half for the Sunday according to section 50 of the Holidays Act) - Not entitled to an alternative holiday.
B2 If Bob doesn't work on Tuesday 27th December - he is not entitled to any public holiday benefits for the Tuesday.
And the same pattern will repeat for the New Year Public Holidays.