Shops may still be breaking Easter laws

Some bosses and workers may still be breaking Easter Sunday trading laws despite new legislation allowing shops to open. Photo / file

Some bosses and workers may still be breaking Easter Sunday trading rules despite new laws allowing shops to open.

A recent law change gave local councils the option of permitting Easter Sunday trading and 25 mostly smaller councils have so far introduced the change.

According to the Shop Trading Hours Amendment Bill, which came into force last August, if an employer wants a staff member to work on Easter Sunday they need to provide written notice four to eight weeks prior to Easter Sunday.

If the employee wants to refuse the work, they must give notice within 14 days of receiving the employer's notice.

According to Retail NZ, about 20 of the councils to have adopted Easter Sunday trading had put the rules in place prior to March 18 - four weeks and one day prior to Easter Sunday.

However, the other five councils implemented the changes outside of the four week deadline. Retail NZ was not able to identify these councils.

Employment lawyer Jennifer Mills said employers would still be bound to comply with the notice period, even though it was impossible for shops in those five districts.

"As such, some employers may decide that the upcoming Easter Sunday is too soon to accommodate opening and remain closed."

Mills, who is a partner and head of employment practice at Anthony Harper, said such employers may still open their businesses if they had their employees' agreement to work.

"We consider that, despite the specific regime for notice set out by the new legislation, employers and employees will tend to communicate and operate on a more informal basis, with a reasonable amount of give and take on both sides," she said.

However, if a dispute arose, the legislation would apply.

"Therefore, we would advise employers to stick to the notice requirements in the future, even if employees appear to be playing along."

Aside from the convoluted notice period, the new law gives employees the right to refuse to work on Easter Sunday without providing any reason - even if their employment agreement stipulates they have to work.

"The law also clarifies that an employment agreement provision that requires a shop employee to work (or be available for work) will not be effective or enforceable against the shop employee," Mills said. "Therefore, an employee is fully entitled to say no if requested to work, even if their employment agreement says otherwise."

Bosses had no right to try and compel staff to work or treat them adversely, Mills said.

The Ministry of Business, Innovation and Employment (MBIE) said if an employer was not able to give the required minimum notice under the statute then they must not require the employee to work.

"The employer must not treat a shop employee adversely because they refuse to work on Easter Sunday. The shop may be open and any employee who does work must, of course, be paid for that work."

Easter Sunday is not a statutory holiday so shop workers aren't paid at time-and-a-half and don't receive a day in lieu.

Easter Friday - when there remain strict restrictions on trading - is a public holiday so the right to refuse to work does not apply and workers may be required to work if they usually work on Friday.

Five councils have refused to adopt the new Easter Sunday trading laws while all major centres are yet to reach decisions. Shops which open in the restricted areas risk a prosecution and $1000 fine.

MBIE data shows that prosecutions for shops illegally opening over Easter steadily declined from 63 in 2006, to 34 in 2008, 28 in 2010, 25 in 2012, 0 in 2014 and 3 in 2016.