14 February 2018
An amendment to the Shop Trading Hours Act 1990 along with the qualified support of the Dunedin City Council means Dunedin retailers can open for business on Easter Sunday 1 April 2018. This includes for the purpose of conducting a stock take on the day. The law now permits territorial authorities to adopt, amend and revoke local Easter shop trading policy. Unless and until an exemption is granted by the local territorial authority like the case with the Dunedin City Council the previous restrictions continue to apply on Easter Sunday. However even a souvenir shop which could open in the past will now need to consult with staff and obtain written confirmation from each employee concerning their availability to work Easter Sunday.
What has prompted the Council’s support in this matter is the timing of the three Ed Sheeran concerts in Dunedin which will bring an estimated 65,000 people to the city over the Easter Weekend. Similar policies were approved for other reasons in Wanaka and Queenstown. Clutha District Council has also implemented a policy permitting shops to open which includes Balclutha. Thanks to the policy of the Southland District Council all of Southland is also covered and shops can open with the notable exceptions being Invercargill and Gore. If you operate a shop in Invercargill or Gore the following discussion does not relate to you this year and instead the previous restrictions continue to apply to your retail business.
It is important to note that Dunedin Mayor David Cull has promised to review the policy allowing shops to open immediately after Easter this year warning that any abuse by employers could see the right to open withdrawn. Our view is Mayor Cull’s concern is warranted not because employers will flagrantly flout the new practice but because the amendment to the Shop Trading Act 1990 is so very prescriptive that it is possible some employers will fall afoul of the law without even trying.
For example subpart 2 of the Act is headed up as “Shop Employee Rights” and section 5L of the Act specifically states getting the new process wrong will amount to a Personal Grievance in terms of the Employment Relations Act 2000. The new law also negates and makes ineffective any clause in a shop employee's employment agreement including availability provisions which require them to work or be available to accept work made available on Easter Sunday.
Employers who do not adhere strictly to the letter of the new law may find themselves in difficulty. Employees too need to understand that once a request is made of them by the employer to work on Easter the burden then shifts onto them to decline work. The failure of the employee to notify the employer of their refusal will mean they will be expected to work on the day.
Employers who believe their retail business could benefit from opening should embrace this new opportunity and treat it like the 90 Day Trial Period: get the details right and no worries; get them wrong, watch out. Get the new steps right and a retail shop can open up on Easter Sunday, pay staff normal wages for the work and avoid any problems with either the ERA or Mayor Cull for that matter.
The first step in sorting this new procedure is to understand the concept of the particular consultation required and time frames involved.
Consultation means writing to each employee to tell them the business will be open on Easter Sunday and requesting they work that day. Time frames mean doing this no earlier than 8 weeks and no later than 4 weeks before the relevant Easter Sunday, in this case 1 April 2018. In practice that will mean writing to staff between 3 February 2018 and 3 March 2018 to specifically advise the following:
The consultation time frames above are suitable for use with existing staff. Where an employee is hired four weeks or less before Easter notice should be given to them as soon as reasonably practicable. In the case of an employee who begins work more than 14 days before Easter, they need to provide you a response no later than 14 days after the date you provide them with notice the shop will be open. In the case of an employee who starts work 14 days or less before Easter Sunday they must respond as soon as reasonably practicable.
Adhering to the steps outlined above should enable the employer to operate their business in Dunedin, Queenstown, Wanaka, and across Clutha and Southland (with the exception of Invercargill and Gore) and avoid attracting a Personal Grievance this Easter.
To recap, when requested to work employees have the right to refuse to work on Easter Sunday and do not have to provide a reason for their refusal. Employers who want employees to work on Easter Sunday must advise the employees that they have the right to refuse to work. This must be done by notice in writing eight to four weeks before Easter Sunday.
Employees who intend to refuse to work on an Easter Sunday are required to inform their employer by a notice in writing generally no later than 14 days after they receive the notification from their employer.
Please feel free to contact the legal team at the Otago Southland Employers Association should you have any questions about these interesting changes to trading on Easter Sunday 1 April 2018.
David Browne | Solicitor
Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 | firstname.lastname@example.org
David Browne | Solicitor | 03 456 1812 | 021 225 6938 | email@example.com
Angela MacKenzie | Solicitor | 03 218 7962 | 021 756 809 | firstname.lastname@example.org
Grant Walker | Advocate | 03 455 5165 | email@example.com