The Holidays Act 2003 clearly stipulates the requirements around time and remuneration owed for staff who are expected to work on days such as Christmas Day and New Year’s Day.
The Act states an employer may require an employee to work on a public holiday if the holiday falls on a day which would otherwise be a regular working day for the employee, and the employee is required to work on the public holiday under the employee’s employment agreement.
Typically on a dairy farm over the Christmas period every day is a regular working day, so any staff rostered on over the specific public holidays will be affected.
The employer is required to pay the employee working on the public holiday time and a half, and offer another day off in lieu, at the ordinary rate of pay.
If staff deemed to be “on call” for a public holiday are called on by their boss to work, they is entitled to an alternative holiday and time and a half for the work done on the public holiday.
If a staff member is on call and is not called to work, they are also entitled to an alternative holiday if the nature of the restriction imposed by the call effects the employee’s freedom of action on their day off – for example whether they can drink or travel on that day.
Federated Farmers’ experience with issues around holiday pay indicate most farmers are “reasonably” aware of the requirement, but that some might consider it a contractual obligation, rather than the regulatory obligation that it is.
The Feds’ own employment contract details it specifically, and is often used as a template for specific dairy worker contracts.
The dairy sector has been subject to extra scrutiny in the past 18 months by the Ministry for Business, Innovation and Employment (MBIE) with three rounds of inspection completed and a fourth winding up just before Christmas. There has been an extra focus on farms that employed migrant labour.
Comparing results between the second and first inspection round indicates record keeping has improved considerably, with non-compliance rates dropping from 70% in April to 26% in the August inspection period.
Typically the breaches related to insufficient record keeping, with a lack of accurate time and wage records meaning farmers were unable to demonstrate to inspectors or staff they were meeting obligations for minimum wages paid every hour of work, and holiday payments.
The department has ramped up its enforcement action, with 10 enforceable undertakings made following that round, and one improvement notice issued.
MBIE labour inspectorate regional manager Natalie Gardiner confirmed the dairy sector had generally lifted its game around public holiday payments and general record keeping.
However the department is taking a less than sympathetic approach to any non-compliance it discovers, particularly in light of on-going publicity and education around the issue.
“When it comes to public holidays and leave, we are urging farmers to plan rosters well in advance, being clear on who is working when, and that leave forms are used if necessary. The second thing to ensure is that once the holiday period comes, you need to carefully record who actually works, and for how long and on what days.”
She said she was heartened by the buy-in from the dairy sector’s main industry groups, including Federated Farmers and DairyNZ, in getting more farmers on board with the need for better employment records.
Federated Farmers dairy chairman Andrew Hoggard was personally looking forward to having his first Christmas off for a very long time this year, and was comfortable with how his staff were being rostered for days off in lieu and their own holidays over the festive period.
He believes the dairy sector is getting better at recording hours and time off, with the initial high non-compliance reflecting problem employers MBIE had already been aware of.
He was hoping to soon be trialling a time recording system for logging staff hours.
“There are apps around for staff to record their time, but they are still required to write it down in the hours book. We have yet to see an app and programme that will not only record hours, but then sync with the main computer records, that’s the next step.”
MBIE has useful information on holidays and a tool for calculating payment for public holidays on their website.
