Stat days stolen from some workers

Many people working in retail this weekend will miss a public holiday that the rest of us take for granted.

The problem stems from the 2003 Holidays Act and affects some people who work Tuesday to Saturday and have Sunday and Monday off. When a statutory holiday happens to fall on a Monday they have no right to carry the stat day forward because the day they had off is "not a normal working day" for them.

The Act says that if the stat day falls on a "normal working day" - say for people who work Monday to Friday - then they get the day off with pay.

If they are off work anyway, then an employer is not required to offer an alternative day.

And next year people who have Monday off as a rest day will miss eight of the 11 stat days.

One of them is Bill, who asked that his real name not be used.

Bill works in retail and when the Monday stat days come along he doesn't benefit from them because he has that day off as his "Sunday".

"The stat days that most people enjoy are stolen from me and many others in my position," he says.

"My employer says they can't give me another day."

The Act says a stat day may be swapped for another day, but the word "may" appears to give employers an out. Bill considers that if the Act stipulated "must" instead of "may" there would be no problem. "The Act is discriminatory against people who work weekends and I would like the law changed.

"I know of people who avoid having Monday as their rostered day off so they don't miss out on stat days.

"Workers are being treated differently across the country depending on who you work for and what days you work.

"I've seen these days come and go and they are lost.

"This legislation is denying people like me time with their family, and money.

"It's given to those who work Monday to Friday but denied to the rest of us unless the employer chooses to give their staff the day. But of course that costs them money."

The law is being interpreted differently by employers - some acknowledge the anomaly and others do not.

Bookseller Whitcoulls is one of those that recognises the difficulty and offers an alternative day off to staff who would otherwise miss out.

Foodtown also gives people on its 20,000 staff a day off when a stat day falls on their "weekend".

Whitcoull's Michelle Tubbs says she isn't surprised at the difficulties some employers are having.

"For example, there is a lot of confusion around Christmas this year as it lands on a weekend and it gets quite difficult to manage.

"If you are normally rostered to work on a Saturday and it's a public holiday then you have that day off.

"Most people will receive Christmas Day and Boxing Day off, so you need to make sure you give that person another public holiday on one of their normal rostered days."

A spokesman for The Warehouse says permanent team members on hourly rates who are rostered to work five consecutive days (Tuesday to Saturday or Wednesday to Sunday) are given an alternative holiday when the Friday or Monday is a public holiday.

For police, an extra 11 days of leave are built in for fulltime staff to allow for such stat day shifts.

Employment lawyer Geoff Bevan, of Chapman Tripp, says that as the law stands, Monday is a bad day to have off if you prefer having the public holidays.

"An employee is paid for a public holiday only if it falls on a day that would 'otherwise be a working day' for them.

"If the holiday falls on a Monday, but the employee usually has, say, Sunday and Monday off, the employee won't receive any payment," Bevan says.

An employer can agree to transfer public holidays to another day but is under no obligation to do so.

"The bottom line is that an employee who agrees to take Monday as a regular day off should try to get the employer to agree in advance to transfer any public holidays that fall on a Monday to the following day.

"However, if the employer doesn't agree, the reality is that there is very little that the employee can do except leave the company."

Ross Wilson, who was a part of the Holiday's Act 2003 working group and is a spokesman for the Council of Trade Unions, says he advocated that all fulltime workers should get recognition for the 11 stat days.

"The problem with the Holiday Act is that is has to cover every employee situation and inevitably it is difficult to get a regime that applies to everyone," Wilson says.

"The argument goes that if it's not a day in which you normally work then you are not missing out on anything. But I think you are - everyone else is getting a benefit over the year that some people are not getting.

"I think it's unfair. Some employers will say to casual staff: 'The stat day is not a day you would otherwise have worked because I did not intend you to work that day'.

"That is difficult to rebut if you are a daily casual or contract worker."

Bill says that Easter Sunday is also an issue, with some employers saying they are not allowed to trade because of it being a religious holiday and therefore they will not pay staff who normally work on Sundays.

"Some firms insist staff take a day's holiday so they still get paid. It's another problem with the Holidays Act," says Bill. "These firms should pay staff out of goodwill."

A spokesman for the Government's Employee Relations Services says one option is to employ retail workers to do other things within the shop, such as cleaning or stocktaking on Easter Sunday.

"Shops may not be able to trade, but staff can be employed to do others things inside the shop," said the spokesman.

Minister of Labour Paul Swain was unavailable for comment.

HOW THE ACT OPERATES

What major retailers say

Do you give staff another day off when their rest day falls on a stat holiday?

Whitcoulls: Yes
The Warehouse: Yes
Noel Leeming/Bond & Bond: No comment
Dick Smith Electronics: No
Farmers: No comment
Foodtown: Yes

What the holidays act says

An employer and employee may agree (whether in an employment agreement or otherwise) that any public holiday specified is to be observed by the employee on another day. An agreement between the employer and employee must not diminish the total number of paid public holidays that would otherwise be available to the employee in any year.