‘Moving’ or ‘swapping’ public holidays

The Holidays Act 2003 states that:-

(1)The following days are public holidays:
 (a)       Christmas Day:
 (b)       Boxing Day:
 (c)       New Year's Day:
 (d)       2 January:
 (e)       Waitangi Day:
 (f)        Good Friday:
 (g)       Easter Monday:
 (h)        ANZAC Day:
 (i)        the birthday of the reigning Sovereign (observed on the first Monday in June):
 (j)        Labour Day (being the fourth Monday in October):
 (k)       the day of the anniversary of a province or the day locally observed as that day.
 
 (2)However, an employer and employee may agree (whether in an employment agreement or otherwise) that any public holiday specified in subsection (1) is to be observed by the employee on another day.
  
 (3)An agreement between the employer and employee under subsection (2) must not diminish the total number of paid public holidays that would otherwise be available to the employee in any year.

This provision has perhaps been most commonly used by employers and employees to “swap” the public holiday,  to create a long weekend. For example Waitangi Day in 2007 fell on a Tuesday.  A number of employers agreed with the staff to observe the public holiday on the Monday.  The employer was then closed on the Monday, and the staff were paid for a statutory day, or un-worked public holiday.  The employees then worked on Tuesday 6th February, as an ordinary day, but did not receive time and a half pay or an alternative day in lieu.

It had been understood that this was how the Act was intended to operate  -  only by agreement,  but where the parties could see a mutual benefit,  they could make their own arrangements.  The Employment Court confirmed that this was the correct interpretation.

However the Supreme Court has now clarified the situation in the case of New Zealand Airline Pilots’ Association v Air New Zealand Ltd.
Even if the parties agree to observe the public holiday on a different day, any work performed on the actual public holiday MUST still be paid at time and a half.

All employees who work on a public holiday, in whatever circumstance MUST BE PAID TIME AND A HALF FOR THE HOURS WORKED, AND WILL BE ENTITLED TO AN ATLERANTIVE DAY – even if the parties have agreed to ‘swap’ the public holiday, for another day.