Public Holiday transfers

07 Dec 2011

What date is Christmas Day this year?

With Christmas right around the corner and falling on a Sunday, it is time for employers to get their heads around the statutory transfer of public holidays.  This issue arose last year for the first time since 2005. 

The Holidays Act 2003 automatically transfers the observance of Christmas Day, Boxing Day, New Years Day and 2 January, where those days fall on a Saturday or Sunday, and that day would not other wise be a working day for the employee.  The legislative framework requires employers to take a case by case approach for each employee.  This is straight forward for employers of Monday to Friday employees, but can be a headache for those with employees who work 7 days a week.

Monday to Friday employees

For employees who work Monday to Friday every week, the situation is clear and simple:

• Boxing Day is recognised in the usual way on Monday 26 December; and
• Christmas Day is recognised on Tuesday 27 December – not Sunday 25 December 2011.

The same principle applies to New Years Day:

• 2 January is recognised on 2 January 2012; and
• New Years Day is recognised on 3 January 2012, not 1 January.

Employees who work weekends

For Boxing Day and 2 January, the same dates are recognised for employees who work on Saturdays and Sundays:

• Boxing Day is recognised in the usual way on Monday 26 December; and
• 2 January is recognised on Monday 2 January 2012.

The situation is more complex for employees who work on Sundays:

• If Sunday 25 December would ‘otherwise be a working day’ for the employee, then Christmas is recognised as occurring that day – Sunday 25 December 2011.
• However, if it would not otherwise be a working day for the employee, Christmas transfers in the same manner as it does for Monday to Friday employees – and is recognised on Tuesday 27 December 2011.

For New Years Day, the same applies:

• If Sunday 1 January would ‘otherwise be a working day’ for the employee, then New Years Day is recognised as occurring that day – Sunday 1 January 2012.
• However, if it would not otherwise be a working day for the employee, New Years Day transfers in the same manner as it does for Monday to Friday employees – and is recognised on Tuesday 3 January 2012.

Otherwise a working day

The key to this issue is determining whether the relevant days (Sunday 25 December and Sunday 1 January) would otherwise be a working day for the employee.  The test must be applied to each individual employee, which means an employer can have employees celebrating Christmas Day and New Years Day on different days to one another.

The Holidays Act 2003 sets out how an employer should determine what would ‘otherwise be a working day’ for an employee.  The Act requires an employer and employee to take account of particular listed factors, and try to agree on whether a day would otherwise be a working day for the employee.  The factors for consideration are:

• the employee’s employment agreement
• the employee’s work patterns
• any other relevant factors, including:
  • whether the employee works for the employer only when work is available:
  • the employer’s rosters or other similar systems:
  • the reasonable expectations of the employer and the employee that the employee would work on the day concerned.
• whether, but for the day being a public holiday, the employee would have worked on the day concerned.

The Act states that if the employee would otherwise work any amount of time on the day, it is treated as being ‘otherwise a working day’.  It also provides that if a Close Down period is in force, the factors should be applied, as if the Close Down period were not occurring.

Generally, if the employee has set work patterns or a set roster, the test is relatively easy to apply.  In most cases it is possible to determine what the work pattern would be, if the day was not a public holiday. 

Working even though not otherwise a public holiday

In some instances, an employee who would not otherwise be rostered to work on Christmas Day, nevertheless agrees to work.  This sometimes occurs to give their colleagues a chance to spend time with their families, or because the employee wants to obtain the additional payments associated with working on Christmas.  This can, however, result in an unintended situation. 

In this instance, if the employee would not otherwise work on Sunday 25 December, the public holiday will transfer to Tuesday 27 December.  Therefore, if they do in fact end up working on Sunday 25 December, it is not a public holiday for them, and they are not entitled to time and a half or an alternative holiday (unless their employment agreement provides something to the contrary).

In these instances employers will often pay the employee as if it was Christmas Day, but not treat Tuesday 27 December as a public holiday.  Generally this goes unchallenged and unnoticed by the employee, and no issues arise.  However, technically, it is not in compliance with the Holidays Act 2003.  Having said that, overall it rarely results in the employee being out of pocket.

Conclusion

For some employers, this is a complex issue.  Use the chart below to help you determine what date Christmas occurs this year.  Remember, Boxing Day and 2 January are unaffected this year – no matter what the employee’s work pattern is, they fall on Monday 26 December and Monday 2 January respectively.

If you need any further help with specific cases, please feel free to get in contact with us (Susan Hornsby-Geluk, Partner, Blair Scotland, Senior Associate and Megan Vant, Associate).

Merry Christmas, and the good news is that this issue won’t come up again until 2015!

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