OPINION: Last year, the government gave 67 territorial authorities the power to allow, limit or ban shop trading on Easter Sunday in their districts. This means local authorities can choose the best option for their communities.
However, the move has added to the confusion around Easter Sunday trading.
Retailers who want to open on Easter Sunday, including those who have traditionally traded under the previous exemption rules, may be unaware that they now must comply with new, prescriptive notification provisions if they want employees to work that day.
Easter Sunday is regarded as a special day for many New Zealanders, including those of Christian faith. But it is not a public holiday in New Zealand.
Employees who work that day do not get time and a half or any other normal public holiday entitlements, including days off in lieu.
Where shops are allowed to open, their employees cannot be required to work on Easter Sunday and employers intending to open must notify employees, in writing, of their right to refuse to work.
If you’re an employee, now would be a good time to check if you are rostered on this Easter Sunday and whether the notification provisions apply to you.
Notice must be given at least four weeks in advance, but no earlier than eight weeks before Easter Sunday. It can be hand delivered or emailed to the employee.
The employee then has 14 days to notify the employer if he or she refuses to work on Easter Sunday.
Employees who refuse do not need to give a reason. Employers cannot compel their shop employees to work that day or treat them adversely for refusing to work. Compelling an employee to work includes requiring them to work without giving notice of the right to refuse.
Many councils have not yet decided whether to allow shops to trade on Easter Sunday. And, in some areas, neighbouring councils have reached different decisions, meaning a chain of clothing stores could have a shop in Huntly open on Easter Sunday, yet the same chain would be shut in nearby Hamilton.
A list of the territorial authorities that have made, or are considering, decisions around Easter Sunday trading can be found at: http://www.retail.org.nz/advocacy/shop-trading-hours/easter-sunday-trading.
As a result of the changes, there are now four categories of business operations, each governed by different Easter Sunday rules:
Businesses that are not “shops”. These businesses have no trading restrictions so can operate as normal.
Shops anywhere in New Zealand that fall within the old Easter Sunday exemptions (including petrol stations, pharmacies, garden centres, souvenir shops and takeaway stores.) These may open but now need to comply with new notification provisions.
Shops in territorial authorities that permit Easter Sunday trading. These shops may open but now need to comply with new notification provisions.
Shops that are not in an area where Easter Sunday trading is permitted and do not fall within the other exemptions. These shops are not permitted to open on Easter Sunday. If they do open, the occupier of the shop may be liable for a fine of up to $1,000.
To date, more than half of local councils, including larger ones like Auckland City Council and Christchurch City Council, have not considered the issue and have no intention of doing so until Easter 2018. So, for employees in these areas, there will be no change this year and the existing exemptions will continue to apply.
For councils electing to allow shops to open on Easter Sunday, all shops can trade, regardless of whether they fall under any of the exemptions. But councils can introduce conditions for the whole or part of their districts, or limit the right to trade to certain types of shops, or specify trading hours or apply any other additional conditions. This may further complicate the opening rules
Retailers must be careful not to treat an election to trade as being directly applicable to them; they must also check the conditions around it.
The current situation is confusing, to say the least.
Kathryn McKinney is a Senior Associate in EY Law and Zena Razoki is a Solicitor in EY Law.