Subpart 2 of Part 2 and Schedule 1 come into force on 1 April 2007.
(2)
The rest of this Act comes into force on 1 April 2004.
3-
Purpose
The purpose of this Act is to promote balance between work and other aspects of employees’ lives and, to that end, to provide employees with minimum entitlements to—
(a)
annual holidays to provide the opportunity for rest and recreation:
(b)
public holidays for the observance of days of national, religious, or cultural significance:
(c)
sick leave to assist employees who are unable to attend work because they are sick or injured, or because someone who depends on the employee for care is sick or injured:
(d)
bereavement leave to assist employees who are unable to attend work because they have suffered a bereavement.
4-
Overview
(1)
This Act replaces the Holidays Act 1981.
(2)
In this Act,—
(a)
this Part deals with preliminary matters, including—
(i)
the definition of key terms:
(ii)
the purpose of the Act:
(iii)
the application of the Act:
(iv)
the relationship between the Act and employment agreements:
(b)
Part 2—
(i)
confers minimum entitlements to annual holidays, public holidays, sick leave, and bereavement leave:
(ii)
contains provisions dealing with how holiday pay and leave pay is calculated in various circumstances and when it must be paid:
(c)
Part 3 deals with the enforcement of an employee’s entitlements and other matters, including—
(i)
who can enforce entitlements in addition to the employee:
(ii)
the penalties for non-compliance with the Act:
(iii)
the requirement of an employer to keep a holiday and leave record:
(iv)
the presumption of continuous employment in certain circumstances.
In this Act, unless the context otherwise requires,—
annual holiday means an annual holiday provided under subpart 1 of Part 2
authorised representative, in relation to an employee, means a person who is authorised under section 236 of the Employment Relations Act 2000 to represent the employee
average weekly earnings means 1/52 of an employee’s gross earnings
bereavement leave means paid bereavement leave provided under subpart 4 of Part 2
employee has the same meaning as in section 6 (except subsection (1)(b)(ii)) of the Employment Relations Act 2000
existing collective agreement means a collective agreement that was entered into before 1 April 2004
existing employment agreement means an employment agreement that is entered into before 1 April 2004
existing individual employment agreement means an individual employment agreement that was entered into before 1 April 2004
former Act, in relation to the Injury Prevention, Rehabilitation, and Compensation Act 2001, has the same meaning as in section 6(1) of that Act
gross earnings has the meaning given to it by section 14
holiday—
(a)
means—
(i)
a paid annual holiday provided under subpart 1 of Part 2:
(ii)
a paid public holiday provided under subpart 3 of Part 2; and
(b)
includes any alternative holiday an employee is entitled to under section 56 or section 59
holiday and leave record means the record required to be kept under section 81
holiday pay—
(a)
means pay for an annual holiday or a public holiday; and
(b)
includes a payment an employee is entitled to under section 61
in advance,—
(a)
in relation to an annual holiday, means an annual holiday taken by an employee before the entitlement to the holiday has arisen under section 16:
(b)
in relation to sick leave or bereavement leave, means any sick leave or bereavement leave taken by the employee before the entitlement to the leave has arisen under section 63
leave pay means pay for sick leave or bereavement leave
ordinary weekly pay has the meaning given to it by section 8
partner, in the phrase “spouse or partner” and in related contexts, means civil union partner or de facto partner
public holiday—
(a)
means a day specified in section 44(1); and
(b)
if there is a written agreement under section 44A,—
(i)
includes a period of 24 hours agreed to be treated as a public holiday; but
(ii)
excludes a part of a day specified in section 44(1) agreed to be treated as not part of a public holiday
relevant daily pay has the meaning given to it by section 9
sick leave means paid sick leave provided under subpart 4 of Part 2.
(2)
In this Act, unless the context otherwise requires,—
(a)
the terms Authority, court, department, employer, employment agreement, Labour Inspector, and union have the same meanings as in section 5 of the Employment Relations Act 2000; and
(b)
any other term or expression that is used but not defined in this Act, but that is defined in the Employment Relations Act 2000, has the meaning given to it by that Act.
(3)
In this Act, a reference to—
(a)
an employee, in relation to an employer, means a person employed by the employer:
(b)
an employer, in relation to an employee, means the employee’s employer.
Section 5(1) existing collective agreement: inserted, on 22 October 2004, by section 3 of the Holidays Amendment Act 2004 (2004 No 85).
Section 5(1) existing individual employment agreement: inserted, on 22 October 2004, by section 3 of the Holidays Amendment Act 2004 (2004 No 85).
Section 5(1) partner: inserted, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).
Section 5(1) public holiday: substituted, on 30 September 2008, by section 5 of the Holidays (Transfer of Public Holidays) Amendment Act 2008 (2008 No 103).
Section 5(1) spouse: repealed, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).
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Relationship between Act and employment agreements
(1)
Each entitlement provided to an employee by this Act is a minimum entitlement.
(2)
This Act does not prevent an employer from providing an employee with enhanced or additional entitlements (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.
(3)
However, an employment agreement that excludes, restricts, or reduces an employee’s entitlements under this Act—
(a)
has no effect to the extent that it does so; but
(b)
is not an illegal contract under the Illegal Contracts Act 1970.
7-
Application
This Act—
(a)
applies to all employers and employees, including the Crown and its employees; but
(b)
does not apply in respect of the Armed Forces as defined in section 2(1) of the Defence Act 1990.
In this Act, unless the context otherwise requires, ordinary weekly pay, for the purposes of calculating annual holiday pay,—
(a)
means the amount of pay that the employee receives under his or her employment agreement for an ordinary working week; and
(b)
includes—
(i)
productivity or incentive-based payments (including commission) if those payments are a regular part of the employee’s pay:
(ii)
payments for overtime if those payments are a regular part of the employee’s pay:
(iii)
the cash value of any board or lodgings provided by the employer to the employee; but
(c)
excludes—
(i)
productivity or incentive-based payments that are not a regular part of the employee’s pay:
(ii)
payments for overtime that are not a regular part of the employee’s pay:
(iii)
any one-off or exceptional payments:
(iv)
any discretionary payments that the employer is not bound, under the terms of the employee’s employment agreement, to pay the employee:
(v)
any payment of any employer contribution to a superannuation scheme for the benefit of the employee.
(2)
If it is not possible to determine an employee’s ordinary weekly pay under subsection (1), the pay must be calculated in accordance with the following formula:
a − b
c
where—
a
is the employee’s gross earnings for—
(i)
the 4 calendar weeks before the end of the pay period immediately before the calculation is made; or
(ii)
if, the employee’s normal pay period is longer than 4 weeks, that pay period immediately before the calculation is made
b
is the total amount of payments described in subsection (1)(c)(i) to (iii)
c
is 4.
(3)
However, an employment agreement may specify a special rate of ordinary weekly pay for the purpose of calculating annual holiday pay if the rate is equal to, or greater than, what would otherwise be calculated under subsection (1) or subsection (2).
Compare: 1981 No 15 s 4
Section 8(1)(c)(iv): amended (with effect on 17 May 2007), on 19 December 2007, by section 119 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
Section 8(1)(c)(v): added (with effect on 17 May 2007), on 19 December 2007, by section 119 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
9-
Meaning of relevant daily pay
(1)
In this Act, unless the context otherwise requires, relevant daily pay, for the purposes of calculating payment for a public holiday, alternative holiday, sick leave, or bereavement leave,—
(a)
means the amount of pay that the employee would have received had the employee worked on the day concerned; and
(b)
includes—
(i)
productivity or incentive-based payments (including commission) if those payments would have otherwise been received on the day concerned:
(ii)
payments for overtime if those payments would have otherwise been received on the day concerned:
(iii)
the cash value of any board or lodgings provided by the employer to the employee; but
(c)
excludes any payment of any employer contribution to a superannuation scheme for the benefit of the employee.
(2)
To avoid doubt, if subsection (1)(a) is to be applied in the case of a public holiday, the amount of pay does not include any amount that would be added by virtue of section 50(1)(a) (which relates to the requirement to pay time and a half).
(3)
If it is not possible to determine an employee’s relevant daily pay under subsection (1), the pay must be calculated in accordance with the following formula:
a
b
where—
a
is the employee’s gross earnings for—
(i)
the 4 calendar weeks before the end of the pay period immediately before the calculation is made; or
(ii)
if, the employee’s normal pay period is longer than 4 weeks, that pay period immediately before the calculation is made
b
is the number of whole or part days during which the employee earned those earnings in the 4 calendar weeks, or longer period (as the case may be) including any day on which the employee was on a paid holiday or paid leave; but excluding any other day on which the employee did not actually work.
(4)
However, an employment agreement may specify a special rate of relevant daily pay for the purpose of calculating payment for a public holiday, alternative holiday, sick leave, or bereavement leave if the rate is equal to, or greater than, what would otherwise be calculated under subsection (1) or subsection (3).
Section 9(1)(b)(iii): amended (with effect on 17 May 2007), on 19 December 2007, by section 120 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
Section 9(1)(c): added (with effect on 17 May 2007), on 19 December 2007, by section 120 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
Section 9(2): amended, on 22 October 2004, by section 4 of the Holidays Amendment Act 2004 (2004 No 85).
10-
Cash value of board or lodgings included in ordinary weekly pay and relevant daily pay
(1)
For the purposes of section 8 and section 9, the ordinary weekly pay or relevant daily pay (as the case may be) of an employee includes the cash value of any board or lodgings provided by an employer to the employee—
(a)
as agreed by the employer and employee; or
(b)
as determined by a Labour Inspector if the employer and employee cannot agree on the cash value.
(2)
Despite subsection (1), the ordinary weekly pay or relevant daily pay of an employee does not include the cash value of any board or lodgings provided by an employer to the employee—
(a)
if the work done by the employee requires the employee to stay overnight in a residence other than the employee’s usual place of residence; or
(b)
if the board or lodgings are provided because of special circumstances.
Compare: 1981 No 15 s 5
11-
Labour Inspector may determine ordinary weekly pay or relevant daily pay
(1)
This section applies if an employer and employee cannot agree on the amount of the employee’s—
(a)
ordinary weekly pay under section 8; or
(b)
relevant daily pay under section 9.
(2)
A Labour Inspector may determine the amount of the employee’s ordinary weekly pay or relevant daily pay, as the case may be.
(3)
In making a determination, a Labour Inspector must apply the provisions of section 8 or section 9 (as the case may be) to the circumstances of the employee as determined by the Labour Inspector.
Determination of what would otherwise be working day
This section applies for the purpose of determining an employee’s entitlements to a public holiday, an alternative holiday, to sick leave, or to bereavement leave.
(2)
If it is not clear whether a day would otherwise be a working day for the employee, the employer and employee must take into account the factors listed in subsection (3), with a view to reaching agreement on the matter.
(3)
The factors are—
(a)
the employee’s employment agreement:
(b)
the employee’s work patterns:
(c)
any other relevant factors, including—
(i)
whether the employee works for the employer only when work is available:
(ii)
the employer’s rosters or other similar systems:
(iii)
the reasonable expectations of the employer and the employee that the employee would work on the day concerned.
(4)
For the purposes of public holidays, if an employee would otherwise work any amount of time on a public holiday, that day must be treated as a day that would otherwise be a working day for the employee.
13-
Labour Inspector may determine what would otherwise be working day
(1)
This section applies if an employer and employee cannot agree under section 12 on whether a day would otherwise be a working day for the employee.
(2)
A Labour Inspector may determine whether the day would otherwise be a working day for the employee.
(3)
In making a determination, the Labour Inspector must take into account the factors listed in section 12(3).
14-
Meaning of gross earnings
In this Act, unless the context otherwise requires, gross earnings, in relation to an employee for the period during which the earnings are being assessed,—
(a)
means all payments that the employer is required to pay to the employee under the employee’s employment agreement, including, for example—
(i)
salary or wages:
(ii)
allowances:
(iii)
payment for an annual holiday, a public holiday, an alternative holiday, sick leave, or bereavement leave taken by the employee during the period:
(iv)
productivity or incentive-based payments (including commission):
(v)
payments for overtime:
(vi)
the cash value of any board or lodgings provided by the employer as agreed or determined under section 10:
(vii)
first week compensation payable by the employer under section 97 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act; but
(b)
excludes any payments that the employer is not bound, by the terms of the employee’s employment agreement, to pay the employee, for example—
(i)
any discretionary payments:
(ii)
any weekly compensation payable under the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act:
(iii)
any payment for absence from work while the employee is on volunteers leave within the meaning of the Volunteers Employment Protection Act 1973; and
(c)
also excludes—
(i)
any payment to reimburse the employee for any actual costs incurred by the employee related to his or her employment:
(ii)
any payment of a reasonably assessed amount to reimburse the employee for any costs incurred by the employee related to his or her employment:
(iii)
any payment of any employer contribution to a superannuation scheme for the benefit of the employee.
Compare: 1981 No 15 s 4
Section 14(b)(iii): amended, on 1 April 2004, by section 15 of the Volunteers Employment Protection Amendment Act 2004 (2004 No 12).
Section 14(c)(iii): added (with effect on 17 May 2007), on 19 December 2007, by section 121 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).
