Employees not working during lockdown could miss out on public holiday payments

Employees who are not working during the lockdown shouldn't expect to be paid during the upcoming Easter public holidays, employment lawyers warn.

Dundas Street partner and employment lawyer David Traylor said a few issues had been thrown up around how Monday and Friday should be treated for someone who is not working because of the lockdown when it would otherwise have been a paid working day for them.

But Traylor said because the employee, irrespective of the public holiday, would not have worked and not being paid because of the lockdown then they would have no entitlement to be paid for the public holiday.

However, he said if the employee was continuing to be paid during the lockdown even though they are not working then they should expect to get paid for the public holidays.

Likewise Traylor said employees who had agreed to a lower pay rate should expect to only be paid time-and-a-half of they were getting during alert level 4 and not at their previous higher level.

Meanwhile people who were working on public holidays were entitled to time-and-a-half and a lieu day.

While Good Friday and Easter Monday were treated as public holidays, Easter Sunday was not, so employees were not entitled to time-and-a-half and a day in lieu.

However often a further complication for some workers - such as those on shifts - was working out whether they would normally be working on the Friday and Monday if it was not a public holiday and therefore were entitled to payment.

"Where it is unclear whether a public holiday would otherwise have been a working day, the Holidays Act requires the parties to try and reach agreement taking into account factors listed in the Act," Traylor said.

• Covid19.govt.nz: The Government's official Covid-19 advisory website

Employment lawyer Catherine Stewart said another issue that might arise for employers in the lockdown is the application of wage subsidies where employees work on public holidays.

"Even if employees have agreed to reduce their wages to the level of wage subsidies this does not detract from an employer's obligation to pay their staff time and a half for work on public holidays (provided the requirements in the Holidays Act for working on those days are met)."

Stewart said employers would need to carefully balance the affordability of paying their staff extra wages for working public holidays (which might tip the level of pay over and above the amount of the wage subsidies) versus the benefit they hope to achieve by having their staff working on the public holidays. These staff who work public holidays are also entitled to a lieu day.

An MBIE spokesperson said determining if Fridays and Mondays were "otherwise working days" should be based on pre-Covid-19 working patterns and if they were then employees should be paid for the upcoming public holidays.

However, if the employer and employee have agreed to a permanent change, the new arrangement could be used to assess whether the day was an "otherwise working day".

MBIE said employers could use the Government's wage subsidy to cover some or all of their employees' wages, including pay for the upcoming public holidays.

Last week the Government announced that during alert level 4 supermarkets will be required to be closed as usual on Good Friday but could open on Easter Sunday.

Employees must be given the choice about working Easter Sunday and could refuse to work without giving a reason, according to Ministry of Business, Employment and Innovation website. Employers could also offer employees extra pay as an incentive for them to work.

Key rules:

• Employees must be paid at least time-and-a-half for the time on public holidays and if it fall on their normal working day get a day in lieu

• Easter Sunday is not a public holiday so employees will not be entitled to pay and half and day in lieu

• All shop employees have the right to refuse to work on Easter Sunday and they don't have to give their employer a reason for refusing.

• Employers can offer employees extra pay as an incentive

• If an employee thinks they have been compelled to work on Easter Sunday by their employer, or treated adversely because they have chosen not to work, they can take a personal grievance against the employer
Source: MBIE