transferring public holidays – entitlements for employees working shifts that cross midnight

Enjoying public holidays can be difficult for employees who work shifts that start on one calendar day and end on the next calendar day (as the public holiday runs from midnight to midnight).

The Holidays (Transfer of Public Holidays) Amendment Act 2008 amended the Holidays Act 2003 to allow employees working night shifts that start or end on a public holiday to transfer the public holiday, by agreement with their employer, so that the public holiday covers one whole shift. It is important to note that the transfer can only take place if the employee is due to work a shift in the period to which the public holiday is transferred.

The agreement to transfer the public holiday must be in writing so that both employee and employer are clear about their public holiday arrangements. The agreement cannot reduce the number of public holidays that the employee would have been entitled to had the holiday not been transferred, and the traditional holiday been celebrated.

If there is agreement to transfer a public holiday, it is good practice to include this agreement in your employment agreement.

How does the transfer agreement work?

Where an employee’s shift starts on one calendar day and ends on the next calendar day and one of those days is a public holiday, an employer and employee can enter into an agreement to transfer the public holiday to a 24 hour period that begins or ends on the public holiday, if the employee is due to work a shift in that 24 hour period.

Example 1

An employee is scheduled to work from 10 pm on 26 October 2008 to 6 am on 27 October 2008 (shift A). The 27th of October 2008 is a public holiday (Labour Day). The person is also scheduled to work the same shift beginning on Labour Day, finishing on the morning of 28 October (shift B). The employer and employee may agree that Labour Day for that employee will run from midday on 26 October to midday on 27 October. This means that the employee’s Labour Day will cover the whole of shift A and will not cover any part of shift B.

If the employee works shift A they will be entitled to at least time and a half payment for the hours worked, plus an alternative holiday.

If the employee does not work shift A they will be entitled to their relevant daily pay for the shift.

Shift B will not attract any public holiday entitlements, because the employee’s Labour Day does not cover any part of shift B.

How does the transfer agreement work where an employee’s shift overlaps two public holidays?

Where there are two public holidays in a row, and an employee’s shift overlaps both public holidays, an employer and employee can agree that two separate periods of 24 hours are to be treated as public holidays if each 24 hour period starts or finishes during those public holidays, and the employee is due to work a shift in each of those 24 hour periods (note that the employee and employer could also agree to transfer just one of the public holidays, rather than both).

Example 2

An employee is scheduled to work from 10 pm on 24 December to 6 am on Christmas Day (shift 1), 10 pm on Christmas Day to 6 am on Boxing Day (shift 2), and 10 pm on Boxing Day to 6 am on 27 December (shift 3). The employer and employee can agree that Christmas Day for the employee will run from midday on 25 December to midday on 26 December, and that Boxing Day for the employee will run from midday 26 December to midday 27 December. This means that the employee’s Christmas Day will cover shift 2, and the employee’s Boxing Day will cover shift 3.  The employee’s Christmas Day will not cover any part of shift 1.

If the employee works both shift 2 and shift 3, they will be entitled to at least time and a half payment for hours worked, and two alternative holidays off.

If the employee does not work either shift 2 or 3 they will be entitled to their relevant daily pay for both shifts.

If the employee works shift 2 but not shift 3, they will be entitled to time and half payment for shift 2, an alternative holiday for shift 2, and relevant daily pay for shift 3.

Shift 1 will not attract any public holiday entitlements, because the employee’s Christmas Day does not cover any part of shift 1.

What if provisions like these are already in my employment agreement?

Existing provisions in employment agreements to transfer public holidays can be applied if they meet the rules set out above – for example, the employee’s whole shift is in the 24 hour period to which the public holiday is transferred, and the 24 hour period starts or ends on the traditional public holiday.