Matariki & Employees’ Rights

Ngā mihi o Matariki!

Tomorrow, Friday 24 June 2022, is the first Matariki Observance Day. The particular dates on which the holiday will be observed have been scheduled up to the year 2052 under Te Kāhui o Matariki Public Holiday Act 2022.  

Matariki is now recognised as a public holiday and the relevant parts of the Holidays Act 2003 apply. Workers are generally entitled to public holidays in addition to (not instead of) their other leave entitlements, like annual and sick leave.

A key idea when working out your rights as an employee is whether the public holiday falls on a day that “would otherwise be a working day for the employee.”  So, in terms of Matariki Observance Day, the key question is whether you would ordinarily work on this Friday.  In many cases this will be obvious, for instance, Friday may be a working day under your employment agreement, and/or there might be a clear pattern of you working on Fridays for several months, or even years.  

It may not be clear whether Friday would otherwise be a working day for you, particularly if you are a casual worker.  If this is the case, you and your employer should consider the following factors:

(a) the employee’s employment agreement:

(b) the employee’s work patterns:

(c) any other relevant factors, including—

(i) whether the employee works for the employer only when work is available:

(ii) the employer’s rosters or other similar systems:

(iii) the reasonable expectations of the employer and the employee that the employee would work on the day concerned.

(d) whether, but for the day being a public holiday, an alternative holiday, or a day on which the employee was on sick leave or bereavement leave or family violence leave, the employee would have worked on the day concerned.

For casual workers, it may not be clear whether Friday would otherwise be a working day, because you are offered work by your employer on an unpredictable “as required” basis.  But if it’s a busy time of year for your industry, and/or if you have worked the last several Fridays in a row, it would (on the face of it) be unfair for your employer to say that on this particular Friday, Matariki Observance Day, work has suddenly dried up and you are not required on site.  

There is no distinction between casual workers and permanent workers under the public holiday regime, the key question is simply whether the public holiday would otherwise be a working day.

What are your rights if this Friday would otherwise be a working day?  The starting point is you do not have to work, and you are entitled to not less than your relevant daily pay (i.e. the pay you would have received had you worked that day) or your average daily pay (i.e. your gross earnings for the past 52 weeks, divided by the number of whole or part days you worked in those 52 weeks to earn those gross earnings). 

You may be required to work on a public holiday, however, if the public holiday would otherwise be a working day for you and your employment agreement says you are required to work public holidays.  If you are required to work any part of a public holiday because these conditions are met, the general entitlement is to get paid “time and a half”, and to receive an alternative holiday (i.e. a day in lieu). 

Now is a great time to review the leave/holidays clause of your employment agreement.  If you are not receiving public holiday entitlements and you think you should, we encourage you to contact us, or an employment lawyer, advocate, or union representative.