The rules if you’re working, or running a business, over the Christmas break

It’s the time of year when it can be easy to forget which day it is, or whether the scorched almonds you just ate should be counted as breakfast or lunch.

But for retailers around the country – and the staff working in them – keeping track of the rules is important through the holidays.

The Ministry of Business, Innovation and Employment’s Labour Inspectorate says employers and employees should understand their legal obligations around the public holidays.

Which days do shops have to shut?

There are three-and-a-half days a year that most shops have to close by law: Christmas Day, Good Friday and Easter Sunday, as well as until 1pm on Anzac Day.

So most retail workers should be getting Christmas Day off.

Which shops can open?

Businesses that are an “essential shop or business” or have an area exemption can open.

That includes dairies, petrol stations, restaurants and cafes, and even sometimes hairdressers if they want to open.

Some shops can open because they have an area exemption, which is generally granted in tourist destinations such as Taupō or Queenstown.

Do you have to work a public holiday?

You usually can only be required to work public holidays if it is stated in your employment agreement and the public holiday is on a day you will normally work.

If you work any of the four public holidays over the Christmas and New Year period you should be paid time-and-a-half for the hours worked and receive an alternative full day off if it was a day you normally work.

If an employee does not work on the public holiday but it is a day they would normally work, they are entitled to their normal daily pay.

If you would not normally work but volunteer to, you might only get time-and-a-half.

Could you be paid less than normal?

Alison Maelzer, a partner at law firm Hesketh Henry, said people would only be paid time-and-a-half only for the hours worked on the public holiday.

“This means that if the work hours on that day are reduced, the employee may actually receive less than they would have on a ‘normal’ work day. Note that this is proposed to be changed under the forthcoming leave reforms.

“If an employee works on a public holiday that falls on a day that would otherwise be a working day for them, the employee will receive a full, paid, alternative holiday to be taken at some other time. This applies no matter how many hours were worked on the public holiday.”

How many public holidays can you get?

This year, Christmas Day is a Thursday so the Thursday and Friday are public holidays, as well as the Thursday and Friday the following week.

When holidays are “mondayised” because they fall on a weekend, you are only entitled to public holiday pay and days in lieu on one of each public holiday – you can’t claim for the day and then the “mondayised” holiday.

What if you don’t have a normal work pattern?

The government advises that if an employee does not have a clear work pattern, or there is a lot of variation in their work times, they need to agree with their employer if a public holiday is a day they would otherwise be working, and what they would normally be paid.

Malezer said “average daily pay” could only be used if it was not possible to determine the relevant daily pay, or if it varied within the pay period of the holiday.

Can you be forced to take leave?

Employers can require staff to take annual leave during a Christmas/New Year closedown but must give at least 14 days’ written notice.

Public holidays during a closedown still need to be paid if they fall on days that would otherwise be working days.

An employer can only have one annual closedown in a 12-month period.

What if you’re leaving?

Maelzer said when an employee was leaving an organisation, the employer must nominally ‘count out’ the number of days of entitled annual holidays from the termination date – the holidays the employee is entitled to after working for 12 months.

“If a public holiday falls within this period, and it is a day that the employee would otherwise have worked, they are entitled to be paid for that public holiday.”

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