Going on leave during the holiday period can create issues for employers. File photo. Photo: 123rf
It's that time of year again. We're stocking up on Christmas crackers, trying to find space in the fridge for the ham - and business owners are puzzling over who gets time-and-a-half and a day in lieu.
RNZ asked employment law expert Alison Maelzer, of Hesketh Henry, to explain some of the common leave issues that can catch out workers and their employers.
Can my employer force me to take leave?
Maelzer says your employer can require you to take annual holidays, if you cannot mutually agree on a time to do so. They must also give you at least 14 days' notice.
"You can only be required to take annual holidays that you are entitled to - you cannot be made to take annual holidays in advance or 'accrued' annual holidays. However, if the employer has a closedown period you can be made to take unpaid leave."
What if I don't have enough leave to cover the closedown period?
She says your best option in this scenario is to ask your employer to take leave in advance.
"This means using some of next year's leave entitlement early. However, your employer does not have to agree to this. Otherwise, your employer can require you to take unpaid leave during a closedown period provided they give you at least 14 days' notice. This will also re-set your anniversary date, so that you will become entitled to your next year's entitlement of annual holidays around the time of the closedown."
Can my employer deny my leave request?
"Your employer can deny a request for annual holidays, but their power to do so is not unconstrained," Maelzer said.
"Employers and employees must first try to agree on when an employee takes their annual holidays. An employer can say no to your request, but there are a few restrictions on this: Firstly, employers cannot unreasonably withhold their consent to an employee's request. In practice, there needs to be a good reason for the employer denying a request, and the employer needs to deal with the employee in good faith. Secondly, employers must allow employees to take at least two weeks of their annual leave entitlement in a continuous period if they request this. Thirdly, employers must allow employees to take annual holidays within 12-months of becoming entitled to them."
What happens if I get sick on annual leave?
If you become sick when you are on annual leave, you can ask to have the leave converted to sick leave.
"However, your employer does not need to agree to this. If you get sick before your annual holidays start your employer must allow you to take sick leave. If your sick leave continues into the period that you were scheduled to be on annual holidays you will use your sick leave entitlement rather than annual holidays."
Do you get paid extra for working on a public holiday?
You must be paid at least time-and-a-half for working on a public holiday.
Maelzer says there are two ways your pay for public holidays can be calculated.
"The most common is to pay you one-and-a-half times your relevant daily pay - what you would normally have been paid for the hours you work on that day - or average daily pay if relevant daily pay is not practical. The second option is to pay you your relevant daily pay if that already includes penal rates for working on public holidays - e.g. if your employment agreement provides for double time.
"If you work on a public holiday, and that day would otherwise be a working day for you, you are entitled to an alternative holiday. This is in addition to being paid at least time-and-a-half for the hours worked on the public holiday."
What if you work a public holiday, but work fewer hours than you normally would?
Pay for working on public holidays is apportioned for the time you work, Maelzer says.
"This means you will be paid for the time you work during the day. You will be paid at least time-and-a-half for the time you work on the public holiday, calculated on an hourly basis.
"If the public holiday falls on a day that would ordinarily be a working day for you, and you work for any amount of time, you are entitled to an alternative holiday. This alternative holiday is for a full day off work on pay, regardless of how long you worked during the public holiday.
This alternative holiday is in addition to getting paid at least time-and-a-half for working during the public holiday."
How do I know what would "otherwise be a working day" for me, if my days of work change from week to week?
Maelzer says you can look at a few different factors: Your employment agreement, your work patterns, any rosters, and the reasonable expectations of both employer and employee about that day.
"There is no hard and fast rule about, for example, working two of the last four Wednesdays. However, sometimes a 'rule' will be written into the employment agreement, especially a collective agreement.
"If an employer and employee cannot agree on what would otherwise be a working day for the employee, you can ask a Labour Inspector to determine it for you."
What happens if you work on a public holiday that is observed on another day?
Four public holidays fall over the Christmas and New Year period (Christmas Day, Boxing Day, New Year's Day, and January 2). If these days fall on a Saturday or Sunday, and Saturday or Sunday is ordinarily a working day for you, you will observe the holiday on that day.
"However, if one of these days falls on a Saturday, and Saturday is not an ordinary working day for you, you will observe the holiday on the following Monday. If one of these days falls on a Sunday, and Sunday is not an ordinary working day for you, you will observe the holiday on the following Tuesday. You will get paid at least time-and-a-half on the day that you observe the public holiday. If you observe a public holiday on a Monday or Tuesday, you will be paid at least time-and-a-half for that day."
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