Hard on the heels of new legislation enabling retail establishments to open on Sundays and public holidays is an amendment to the Public Holidays Act 1947 ("the Act").

The Public Holiday Amendment Act 2005 (the "Amendment Act") spells out the rights and duties of employers and employees in respect of working on public holidays, which for the purposes of the Act includes Sundays.

Section 8A of the Amendment Act requires a retail establishment to notify its staff in writing of the employer's intention to open on a public holiday, or a number of public holidays.

The notice must inform the employee of his right to refuse to work on any public holiday, unless the employee is already employed to work or contracted to work on a public holiday, in which case the notice provisions do not apply.

On receipt of the notice the employee must reply in writing within seven days, advising the employer whether he will work on the public holiday or not. The notice must be signed by the employee and dated.

Where an employee who is not already contracted to work on a public holiday agrees to do so, the Employment Act 2000 applies. It provides that an employer must pay for overtime at one and a half times the employee's normal hourly wage.

Alternatively, the employer must pay the employee at his regular rate of wages and grant him a holiday with pay on another day agreed between them.

If a collective bargaining agreement or an employee's contract of employment provides for a greater benefit or payment, then the collective bargaining agreement or the contract applies.

Once an employer has decided to open on a public holiday, it must apply to the Registrar of Companies for permission to open, providing details of the type of business and the size of business (by retail floor space).

If only a temporary licence is required, the employer must specify the dates the business is to be open, and pay a fee of $80.

The cost of an annual licence fee, which is determined by retail floor space, ranges from $320 to $1,000. A minimum of two business days are required by The Registrar of Companies to process applications.

Aside from setting the terms applicable to working on public holidays, the legislation also protects employees who decline to work on a public holiday.

Such employees cannot be disciplined, dismissed or selected for redundancy where the sole or predominant ground arises out of the unwillingness of the employee to work on a public holiday.

In short, it is up to employees to decide, without fear of retribution, whether they wish to work on a public holiday. If an employer does not receive the agreement of its regular staff to work on a public holiday, then the employer will doubtless hire temporary help or choose not to open.

Kelvin Hastings-Smith is Counsel to Appleby Spurling Hunter, and Manager of the firm's Litigation Practice Group. Copies of Mr. Hastings-Smith's columns can be obtained on the Appleby Spurling Hunter website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.