Five things you need to know before Christmas

As Christmas draws closer, here’s a quick list of five things as an employer you should be aware of when it comes to minimum legal employment rights.

1. Is closing down a workplace at Christmas legal?

Yes. An Employer may close down a workplace if the processed is managed lawfully. Employees must be given at least 14 days’ notice of the closedown.

An employer may have a regular closedown once a year, such as over Christmas. Employees who are entitled to annual leave at the time of the closedown as required to take annual leave or make other leave arrangements with the employer.

Employees who do not have entitled annual leave or are in their first year of service must be paid their holiday pay up to and including the last day worked for the year, and their annual leave anniversary date changed to that day. This is so that next year, the employee will have 4 weeks of entitled annual leave awarded to the employee when it is needed for the next closedown.

2. Should employees working on a public holiday always get time and a half, plus an alternative day off?

Not always, no. Employees working on a public holiday should always be paid time and half. However, they would only receive an alternative holiday (a paid day in lieu) if the public holiday they worked was a day that they normally worked (i.e., an “otherwise working day” for them), unless the employee only works on public holidays.

When a public holiday falls on a Saturday or Sunday, and this is a day the employee does not normally work, then an employee’s public holiday is moved to the following Monday (or in some cases to Tuesday).

For example, an employee who normally works weekends is required to work on Christmas Day this year, Wednesday 25 December. As this is not a normal working day for them, they don’t get an alternative holiday, but still get paid time and a half. However, if the Wednesday was their normal working day, they would also get an alternative holiday.

3. Can employers refuse a request when their employees ask to take their annual holidays?

Yes. Employers and employees should try to work out annual holiday arrangements that are acceptable for both parties. For example, an employee might request to take two of their four weeks’ annual holidays over the Christmas break for an extended family holiday.

Employees may need to take holidays for important and legitimate personal, family and community responsibilities and employers must give their employees the opportunity to take at least two of the four weeks’ annual holidays continuously. This rule is to ensure staff are given an extended opportunity for rest and recreation at least once a year.

However, an employer also has the right to run their business as well, eg to ensure that they have enough staff to continue to operate. The key point here is that the employer must have fair and reasonable grounds to refuse a request to take annual holidays at the requested time.

On those occasions when both parties can’t reach agreement about the timing of employees’ annual holidays, then the employer can decide the dates, providing they are being fair and reasonable.  However, the employee must be given at least 14 days’ notice to take annual holidays on those specified dates.

4. Do employers have to provide their employees with annual holidays in advance?

No. Employees don’t have a minimum legal right to take annual holidays in advance before they complete one year of work. If an employer provides this, it is at their discretion.

All employees become entitled to at least four weeks’ annual holidays after 12 months of continuous employment.

However, it is also common for some employers to allow their staff to take annual holidays in advance, even when they haven’t “accrued” enough days. “Accrued” is like a balance that staff have accumulated since they started working for a business. However, there is no legal requirement for an employer to provide annual holidays in advance.

5. Can employees cash-up all their annual holidays during their employment?

No. Employees can ask to be paid out up to one week’s worth of annual holidays per year for each entitlement year, but the employer can say no to the request. If the employer agrees, employees must not cash-up more than one week’s worth of annual holidays per year for each four weeks’ holiday.

For example, an employee might want extra money for Christmas gifts and expenses and want to cash-up some of their annual holidays’ balance. The employee must have completed 12 months’ employment and make the request in writing. The employer must reply in writing and doesn’t have to give a reason for their decision.

An employer can also opt out of having to consider such cash-up requests by stating this in a workplace policy or employment contract.

Also, an employer cannot force an employee to cash up a portion of their annual holidays, if the employer has not been given a written request from the employee. In this case, the employee can keep both the cash up money and still take the portion of annual holidays cashed up as paid holidays. The employer may also face a penalty.

More information

For more information, visit the Employment New Zealand website.

Source: Employment New Zealand 2019

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