Fast food companies cheat workers out of lieu days

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Workers have been cheated out of their lieu day entitlements for working on a public holiday at several fast food companies.

By law, workers are meant to get one full day as a paid “alternative holiday” (also called a lieu day) if they work any period of time on a public holiday – if that day is usually a working day for them. So, if the public holiday is on a Monday and I usually work Mondays, I should get paid time and a half for all hours worked and get another full day’s paid leave.

I should get a day’s paid leave even if I only work only for a short period on the public holiday. For example, I might start work the day before the public holiday and finish work at 1am on the public holiday. In that example, I should get paid time and a half for the one hour I worked on the public holiday as well as a full paid day off.

The alternative holiday can be taken at any time mutually agreeable to the employer and employee, and is paid at the employee’s relevant daily pay or average daily pay (where applicable) for the day taken off.

We have discovered that Wendy’s has adopted a policy of only giving a lieu day if the worker has worked three out of the four previous same days. For example, if the holiday is a Monday the worker has to have worked three of the previous four Monday’s. Then to make sure no worker gets a lieu day, it seems they roster workers off one of the Monday’s just to prevent them being eligible.

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But this “policy” is not known to workers and doesn’t appear to be written down anywhere. The end result is that Wendy’s workers never get a lieu day or alternative holiday. We don’t believe such a policy is lawful.

McDonald’s have also been caught out. It seems their payroll system didn’t recognise that people had worked on a public holiday if they worked only a minority of their shift on the public holiday.

One worker we represented started work at 10pm on Monday 27 January – Auckland Anniversary public holiday. He worked until 7am on Tuesday. So he was deemed by payroll to have worked on Tuesday not Monday. However, the law says that any time worked on a public holiday creates an entitlement to a full day’s alternative holiday if it is “an otherwise working day”. In the end the company agreed and the worker has got their lieu day.

But this “payroll policy” will have affected hundreds of workers on the graveyard shifts. We have asked the company to look into other cases where this has happened and are waiting for a response.

Workers need to keep a careful watch over their legal and contractual entitlements. We have discovered again and again some of the biggest companies in New Zealand violating laws over legal minimum wages, breaks, and holidays.

We have legal cases pending over missed breaks at McDonald’s and a failure to pay minimum wages at major hotels which will be reported on in the future.

These cases may help blog readers get an understanding of how low even major brand companies are willing to go to cheat their workers out of a legal entitlement .

20 COMMENTS

  1. Perhaps the punitive aspects to labour laws are insufficient to motivate these corporations to obey the law? A few stiff penalties might be sufficient to draw irate shareholders to demand explanations from their Directors as to why they’d be paying hefty court fines instead of higher dividends.

    That would focus the attention of corporate bosses. Money is the only language they seem to understand.

    • Good points there, a pattern of big companies playing hardball and denying workers their rights is emerging lately. Hit these companies in the pocket with massive fines- it’s the only way to get their attention. This isn’t a third world country where workers have no rights.

  2. Are the Wendy’s workers temp, permanent part-time or full-time? This does have a bearing on this. I think the practice of dodging a day-in-lieu by this technicality is quite widespread in NZ. The temp agencies are notorious for doing this all the time. I know Coverstaff do it.

    • Are the Wendy’s workers temp, permanent part-time or full-time?

      They’ll be casual. Nobody but the managers will be fulltime workers.

      This does have a bearing on this.

      Yes it does. The law defines the concept would normally work as, IIRC, having worked the same day in the three previous weeks. This does make it easy for fast food outlets to avoid paying days-in-lieu.

        • I’d be highly surprised by that Mike. When I was at McD’s the employees, except managers, were casual with no fixed or guaranteed hours. I doubt if that’s changed.

          • I negotiate their agreement. They do not have fixed hours but they are not legally casuals. That is why if there is a pattern of work on the public holiday the company has to give a lieu day. Each company has a different approach to what that pattern is. And because there are no guaranteed hours from week to week it is easy for a company to manipulate it.

            Most companies deny manipulating the roster to deny entitlements. However we have had proff of this happening at companies in the past. At Restaurant Brands it was dubbed “The Yellow List”. But if a worker usually works a Monday and a public holiday is on a Monday then they earn a lieu day. That is the law. Genuine “casuals” have no pattern of work.

    • These employers are not breaking the law. I have looked at the Department of Labour website and it confirms this. But it means that temp/casual workers get a raw deal, even though they do the same work (often at lower pay rates) as other workers.

  3. Why should you get a full day’s pay regardless of how long you have worked on the public holiday? How is this in any way fair?

    • What do you think “public holiday” means.

      Some people are working very flexible hours to suit businesses. What happens when a worker is asked to work a half-day shift on Anzac afternoon? The worker does not get a full day of either work or holiday but has all the loss of the holiday by being required to work. No compensation?

      People who think a young worker should be treated like that must be really miserable bastards.

      You question the fairness but obviously only the fairness to the business owner(s).

    • “Why should you get a full day’s pay regardless of how long you have worked on the public holiday? How is this in any way fair? ”

      It’s the law you silly troll

    • That’s none of your business, Gosman. You’re not a worker affected by this situation so why should it concern you?

      Feel free to post details of your employment contract, remuneration, conditions, etc, so we pass ask inane questions about your work situation.

    • Why not just ban public holidays for workers then if you’ve got that attitude? Workers have to spend time away from their families on a public holiday, that’s why they are compensated. Also, it’s the law – plain and simple. It’s also interesting that some food establishments charge customers holiday surcharges – I hope this covers workers’ extra pay, though in reality if they’re open it must be worth it money wise so the surcharges should be banned.

      • They are already compensated by penal rates for the day they work. The question of fairness comes in when someone who only works 1 hour on a public holiday gets a complete day in lieu the same if they worked 8 hours. Why is that fair to the worker working longer hours?

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