GUEST OPINION

No public holidays speak more loudly about our national identity than Waitangi Day and Anzac Day. 

For years, most Kiwis have gathered together with friends and family to have a day off work and celebrate or commemorate whatever these special days may mean to them – unless they fall on a Saturday or Sunday.

This longstanding employee bugbear appears set to change with Labour MP David Clark’s member’s bill, expected to receive its first reading in Parliament in the next few weeks.

The Holidays (Full Recognition of Waitangi Day and Anzac Day) Amendment Bill proposes an amendment to the Holidays Act 2003 to allow for the Mondayisation of of both days.  The bill follows the same format as the provisions that Mondayise Christmas Day, Boxing Day, New Year’s Day and January 2. 

Contrary to views expressed in some internet blogs, the bill would not change the dates on which Waitangi Day and Anzac Day are celebrated.  The gathering at Waitangi and Anzac services around the country would continue to be held on February 6 and April 25 as they always have been. 

Rather, the bill is employee specific and its application will depend on each employee’s ordinary working days. 

If Waitangi Day or Anzac Day fall on a Saturday or Sunday that would otherwise be a working day for the employee, then the public holiday will be treated as falling on that Saturday or Sunday. 

If Waitangi Day or Anzac Day fall on a Saturday or Sunday, which is not otherwise a working day for the employee, then the public holiday will be treated as falling on the following Monday. 

In some seven-day-a-week workplaces, this will result in a split among employees, with some employees treating the Saturday or Sunday as their holiday, and others treating the Monday as their holiday. 

How the bill affects employers
Where employers have employees who normally work on the Saturday or Sunday, those employees will either take Waitangi or Anzac Day off as a paid public holiday or they will work that day as usual and become entitled to payment at time and a half for the hours worked, plus an alternative day’s holiday to be taken at another time to be agreed with the employer.

Where employees do not normally work on the Saturday or Sunday, then those employees will either take the following Monday off or work that day and become entitled to payment at time and a half for the hours worked, plus an alternative day’s holiday to be taken at another time to be agreed with the employer.

Mixed reception
While most employees and many employers appear to be in favour of the bill, believing it will simplify public holiday administration and provide additional family and relaxation time for employees, some concerns have been raised regarding potential costs for employers and the risk of making two of our most important national days less significant.

In Parliamentary circles, the bill appears to be supported by Labour, Greens, New Zealand First, Maori Party and Peter Dunne. 

National has discussed the bill in caucus but has not yet adopted a party line.  ACT MP John Banks has expressed a preference for the status quo.  This means that the future of the bill hangs in the balance and may well be dependent on whether it is supported by Mana’s sole MP.

Debate continues
If the bill is enacted, those hopeful this amendment will end debate around the administration of holiday entitlements are likely to be sorely disappointed.  The proposed legislation does not change the fact that part-time employees who do not work on a Monday or a Friday are entitled to fewer public holidays than other part-time employees working the same number of days but on different days of the week. 

The amendment also creates additional issues for employers using a public holiday surcharge. Given that they are likely to be paying some employees at time and a half on the actual weekend holiday and other employees at time and a half on the Monday, should the employer charge a surcharge on one day, both days or neither? 

The problems regarding administration of public holidays for shift workers whose shifts fall partly on a public holiday would also remain. The “holiday transfer” provisions in the Employment Relations Act 2000 continue to be difficult to administer and understand for many employers and employees. 

If the bill is enacted, employers still have some time to organise their businesses to administer the change.  The next Anzac Day doesn’t fall on a weekend until 2015 while for Waitangi Day it is 2016.

Jennifer Mills is an employment specialist and Christie Hall a senior associate at Minter Ellision Rudd Watts Lawyers