Public Holidays Holidays Act 2003 A guide for employers and managers This guide is published by EMA Advice as a member-only service for members of the Employers' & Manufacturers Association (Northern) Incorporated. It is a guide only and should not be used as a substitute for professional advice. Before taking action, OVERVIEW 2 you should seek advice from AdviceLine or INTRODUCTION 2 your allocated EMA consultant. DEFINITIONS 3 Address: 159 Khyber Pass Road, Employee 3 Grafton, Auckland. Gross earnings 3 Postal: Private Bag 92066, Auckland, 1030. Otherwise working day 4 Telephone: 64 9-367 0909 Relevant daily pay 4 Toll-free: 0800 800 362 Alternative definition of relevant daily pay Facsimile: 64 9 367 0920 4 Special rates of relevant daily pay Email: advice@ema.co.nz 5 THE PUBLIC HOLIDAYS 5 Website: www.emadvice.co.nz In this guide to Public Holidays Holidays Act 2003: ANZAC Day and Waitangi Day 5 Transfer of Christmas and New Year holidays 5 ENTITLEMENT TO PUBLIC HOLIDAYS 6 Taking public holidays 7 For telephone advice and assistance on Payment of public holidays 7 employment and tax and business [Note: Tax and business advice is Payment for public holidays 7 provided by Ernst & Young]: Payment for not working 7-8.00 am 8.00 pm (Monday Payment for working Friday, excluding public holidays) 7 ENTITLEMENT TO ALTERNATIVE HOLIDAYS 8 - Korean and Mandarin speakers On call but did not work on public holiday 8-64-9-367 0909 or 0800 800 362 Taking alternative holidays 8 - AdviceLine@ema.co.nz When employee s decision! Briefings 9 When employer s decision - Employer briefings [Update meetings 9 Cashing up instead every four months at 30 venues] 9 - ER Network meetings held monthly Payment of alternative holidays 9 - Seminars on new legislation Payment for alternative holidays 9 OTHER ISSUES 10! Consultancy Our 31-member team of employment Employment agreements 10 relations and OH&S consultants and Existing 10 lawyers can provide consulting and New legal services, at member-only rates 10 Annual holidays 10! Publications Employment has ended 10 - a-z employer guide Sick leave and bereavement leave 11 - Briefing publication Parental leave 11 - Employer Bulletin weekly newsletter Holiday and leave records 11 - Employer guide to series ENFORCEMENT 12 - Health and safety publications Rights and obligations 12 Determinations by labour inspectors 12 Penalties 13 CONCLUSION 13 EMA ADVICE SERVICES! AdviceLine! Wage & Salary Survey The largest and most comprehensive national wage and salary survey! Website www.emadvice.co.nz
Public Holidays Holidays Act 2003 Page 2 For advice and assistance call Email: AdviceLine@ema.co.nz OVERVIEW 1 There are 11 public holidays provided in New Zealand which, where they fall on days that would otherwise be working days for an employee, are holidays on pay. 2 If an employee works on any part of a public holiday after 1 April 2004 the employer must pay the employee at least the portion of the employee s relevant daily pay that relates to the time actually worked on the day plus half that amount again. 3 If an employee does not work on a public holiday where it is a day that would otherwise be a working day for the employee the employer must pay the employee not less than the employee s relevant daily pay for that day. 4 If an employee works on a public holiday where it is a day that would otherwise be a working day for the employee the employer must provide the employee with an alternative holiday. 5 If an employee is on call and does not work on a public holiday, where it is a day that would otherwise be a working day for the employee, but the nature of the restriction imposed by the on call condition on the employee s freedom of action is such that the employee has not had a whole holiday then the employer must provide the employee with an alternative holiday. 6 An employee cannot be taking an annual holiday on a day on which a public holiday falls. 7 If an employee is scheduled to work on a public holiday that the employee would have been entitled to take as a public holiday, but is sick, then the employee should be paid as if he or she has taken the public holiday. 8 The payment for an alternative holiday must be not less than the employee s relevant daily pay when the alternative holiday is taken. 9 In certain circumstances alternative holidays may be cashed up. 10 Alternative holidays not taken before the employment ends are paid in the employee s final pay. 11 An employer must amend all its existing employment agreements to comply with the Holidays Act 2003 within a year of the Act coming into force on 1 April 2004. 12 There is no entitlement to public holidays after 1 April 2004 if an employee is on parental leave when the public holiday occurs. 13 14 An employer is required to keep a detailed holiday and leave record for every employee. 15 An employer is required to provide every new employee with information about the employee s entitlements under the Holidays Act 2003. 16 The provisions of the Holidays Act 2003 are enforceable in the Employment Relations Authority. INTRODUCTION The Holidays Act 2003 governs the provision of public holidays. It provides for the minimum entitlement to public holidays to all employees who are employed in New Zealand. The Holidays Act 2003 does not prevent an employer from providing an employee with enhanced or additional entitlements by agreement. However, it does render any employment agreement that excludes, restricts, or reduces an employee s entitlements under the Act, ineffective to that extent. Each employment is a separate and distinct relationship under the Holidays Act 2003. An employee who has several part-time jobs has separate entitlements with each employer.
Public Holidays Holidays Act 2003 Page 3 The purpose of the Holidays Act 2003, in respect of public holidays, is set out in the Act. It is to: Provide all employees an entitlement to 11 public holidays if the holidays fall on days that would otherwise be working day for the employee; and To enable employee to agree to work on public holidays in exchange with another day s paid leave. This a-z guide deals with public holidays. Separate a-z guides deal with: Annual Holidays Holidays Act 2003 Sick Leave Holidays Act 2003 Domestic Leave Bereavement Leave Holidays Act 2003 Leave Forms Parental Leave Holidays Act 2003 DEFINITIONS Employee An employee is a person of any age employed by an employer to do any work for hire or reward under a contract of service. A homeworker may be an employee under this Act. This definition does not include a person intending to work or a volunteer. Gross earnings Gross earnings, in relation to an employee for the period during which the earnings are being assessed, means all the payments that the employer is required to pay under the employee s employment agreement. This includes: Salary or wages; and Allowances; and Payments for: o Annual holidays; and o Public holidays; and o Sick leave; and o Bereavement leave; and Productivity or incentive-based payments (including commission); and Overtime; and The cash value of any board or lodgings that are provided by the employer to the employee unless they are provided when: o 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 o The board and lodgings are provided because of special circumstances; and The first week lost earnings payable under section 97 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 or its predecessors. Gross earnings do not include: Any discretionary payments; and Any payment for absence provided for by the Volunteers Employment Protection Act 1973; and Any payment to reimburse an employee for costs incurred in or related to the employee s employment.
Public Holidays Holidays Act 2003 Page 4 Otherwise working day You and your employee should agree on what would otherwise be a working day in the employee s employment agreement. The employee s entitlements to a public holiday, an alternative holiday, sick leave, and bereavement leave will depend on this. 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. If it is not clear whether a day would otherwise be a working day for the employer, the employer and employee must take into account (with a view to reaching agreement on the matter: The employee s employment agreement; and The employee s work patterns; and Any other relevant factors, including: o Whether the employee works for the employer only when work is available; and o The employer s rosters or similar systems; and o The reasonable expectations of the employer and employee that the employee would work on the day concerned. If an employer and employee are unable to agree on whether a day would otherwise be a working day for the employee a labour inspector may make a determination; such a determination is binding unless the Employment Relations Authority determines otherwise. Relevant daily pay Relevant daily pay, for the purposes of calculating payment for a public holiday, sick leave, or bereavement leave, means the amount of pay that the employee would have received had the employee worked on the day concerned. It includes: Productivity or incentive-based payments (including commission) if those payments would have otherwise been received on the day concerned; and Payments for overtime if those payments would have otherwise been received on the day concerned; and The cash value of any board or lodgings provided by the employer to the employee, unless the work done by the employer requires the employee to stay overnight in a place of residence other than the employee s usual place of residence, or if the board or lodgings are provided because of special circumstances. If the day concerned is a public holiday, then relevant daily pay does not include any payment that the employee would have received had the employee worked on that day. Alternative definition of relevant daily pay When it is not possible, under the above definition, to determine an employee s relevant daily pay, the pay must be calculated in accordance with the formula: Where: a b a is the employee s gross earnings for: o The 4 calendar weeks before the end of the pay period immediately before the calculation is made; or o If, the employee s normal pay period is longer than 4 weeks, that pay period immdeaitely before the calculation is made; and 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 paid holiday or paid leave; but excluding any other day on which the employee did not actually work.
Public Holidays Holidays Act 2003 Page 5 Special rates of relevant daily pay 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 if the rate is equal to, or greater than, what would otherwise be calculated under either the definition or alternative definition of relevant daily pay. THE PUBLIC HOLIDAYS All public holidays that occur after 1 April 2004 are governed by the Holidays Act 2003. The Holidays Act 2003 provides that the following days are public holidays; however an employer and employee may agree that any of these public holidays are to be observed by the employee on another day: Christmas Day; and Boxing Day; and New Year s Day; and 2 January; and Waitangi Day; and Good Friday; and Easter Monday; and ANZAC Day; and The birthday of the reigning Sovereign (observed on the first Monday in June); and Labour Day (being the fourth Monday in October); and The day of the anniversary of a province or the day locally observed as that day. If 2 or more of the public holidays fall on the same day, the public holidays must, for the purposes of the Act, be treated as 1 day. ANZAC Day and Waitangi Day The Holidays Act 2003 repeals the sections of the ANZAC Day Act 1966 and the Waitangi Day Act 1976 which provided different rules for the payment of work if an employee worked on these days. Transfer of Christmas and New Year holidays The Holidays Act 2003 provides that if: Any of Christmas Day and Boxing Day, and New Year s Day and 2 January, falls on a Saturday, and Saturday would otherwise be a working day for the employee, the public holiday must be treated as falling on that day; and Any of Christmas Day and Boxing Day, and New Year s Day and 2 January, falls on a Sunday, and Sunday would otherwise be a working day for the employee, the public holiday must be treated as falling on that day; and Any of Christmas Day and Boxing Day, and New Year s Day and 2 January, falls on a Saturday, and Saturday would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Monday; and Any of Christmas Day and Boxing Day, and New Year s Day and 2 January, falls on a Sunday, and Sunday would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Tuesday. This provision does not entitle an employee to more than 4 public holidays for Christmas Day and Boxing Day, and New Year s Day and 2 January. Example 1: Christmas Day and Boxing Day, and New Year s Day and 2 January, fall on Saturday and Sunday respectively. The employee normally works on Saturdays and Sundays, so these days, but for the public holidays, would otherwise be working days for the employee.
Public Holidays Holidays Act 2003 Page 6 M T W T F S S M T W T F S S X X OWD OWD OWD OWD OWD X X OWD OWD OWD OWD OWD PH PH PH PH The employee is not required to work. The employer is required to pay the employee the employee s relevant daily pay for each of the public holidays taken. Example 2: Christmas Day and Boxing Day, and New Year s Day and 2 January, fall on Saturday and Sunday respectively. The employee does not normally work on Saturdays and Sundays, so these days, but for the public holidays, would not otherwise be working days for the employee. All 4 public holidays transfer to the following Mondays and Tuesdays. M T W T F S S M T W T F S S M T X OWD OWD OWD OWD X X X OWD OWD OWD OWD X X X OWD PH PH PH PH The employee does not normally work on Mondays, so when the employee does not work there is no payment for these days. The employee does normally work on Tuesdays, so when the employee does not work the employer is required to pay the employee the employee s relevant daily pay for each of the public holidays taken. Example 3: Christmas Day and Boxing Day, and New Year s Day and 2 January, fall on Saturday and Sunday respectively. The employee does not normally work on Saturdays and Sundays, so these days, but for the public holidays, would not otherwise be working days for the employee. All 4 public holidays transfer to the following Mondays and Tuesdays. M T W T F S S M T W T F S S M T X OWD OWD OWD OWD X X X OWD OWD OWD OWD X X X OWD PH PH PH PH The employee does not normally work on Mondays, so when the employee agrees to work to cover other employees (who are on holiday) the employer is required to the pay the employee payment for working on the public holiday, but is not required to provide the employee with an alternative day instead of the holiday. The employee does normally work on Tuesdays, so when the employee is required to work on those days the employer is required to pay the employee payment for working on the public holiday and provide the employee with an alternative day instead of the holiday. ENTITLEMENT TO PUBLIC HOLIDAYS An employee is entitled to 11 public holidays, and payment for those holidays, if the holidays fall on days which, but for the public holidays, would otherwise be working days for the employee. An agreement between an employer and employee to observe any of the public holidays on another day must not diminish the total number of paid public holidays that would otherwise be available to the employee in any year.
Public Holidays Holidays Act 2003 Page 7 Taking public holidays When a public holiday (whether actual or transferred) falls on a day which, but for the public holiday, would otherwise be a working day for the employee, the employee may take the public holiday, unless the employee has agreed or is required to work on that day. When a public holiday (whether actual or transferred) falls on a day that, but for the public holiday, would not otherwise be a working day for the employee, the employee may not work as usual, or may work by agreement. The Holidays Act 2003 stipulates that when a public holiday (whether actual or transferred) falls on a day which, but for the public holiday, would otherwise be a working day for the employee, the employee is entitled to take the public holiday unless the employer may require the employee, under the employee s employment agreement, to work. Payment of public holidays The payment of a public holiday must be in the pay that relates to the pay period in which the public holiday occurs. Payment for public holidays Whether an employee is entitled to be paid for taking a public holiday, is dependent on whether it would otherwise be a working day for the employee. What an employee is entitled to be paid for working on a public holiday is dependent on whether it would otherwise be a working day for the employee. In this table, payment means payment for working on a public holiday, and RDP means the employee s relevant daily pay. Otherwise working day? Worked? Payment? Yes No RDP Yes Yes Payment No No No No Yes Payment Payment for not working When an employee takes a public holidays which falls on a day which, but for the public holiday, would otherwise be a working day for the employee, the employer is required to pay the employee the employee s relevant daily pay for that holiday. When an employee is off work on a public holiday, because that day would not otherwise be a working day for the employee, the employer is not required to pay the employee anything. Payment for working The provisions of the Holidays Act 2003 do not provide an employee, when a public holiday falls on a day which, but for the public holiday, would otherwise be a working day for the employee, with any monetary incentive to work on that day. In fact, an employee who works on a public holiday, when the public holiday falls on a day which, but for the public holiday, would otherwise be a working day for the employee, could be paid less for working on that day than the employee would be entitled to receive if he or she had taken the public holiday. As a consequence, 2 employees who work on a public holiday may be entitled to be paid the same amount of remuneration even though 1 of those employees volunteered to work on that day which is normally a day off work for the employee, and the other employee was required to work on that day which is normally a day the employee would work.
Public Holidays Holidays Act 2003 Page 8 This will be a matter that you will need to address in your employment agreement if you require an employee to work on public holidays that fall days that would otherwise be working days for the employee. The Act stipulates that if an employee works on any part of a public holiday, the employer must pay the employee at least the portion of the employee s relevant daily pay that relates to the time actually worked on the day plus half that amount again. Example 4: The employee normally works 8 hours a day, every day of work. The employee works Monday to Friday. The employee s employment agreement reflects that the employer may require the employee to work on a public holiday which falls on a day that would otherwise be a working day for the employee, i.e. Monday to Friday. The employer requires the employee to work on Tuesday, on which Waitangi Day has fallen. The employer requires the employee to work for 4 hours. The employee s relevant daily pay is $100. Payment = the portion of the employee s relevant daily pay that relates to the time actually worked on the day plus half that amount again = (0.5 x $100) + 0.5 (0.5 x $100) or half of $100 + half of half of $100 = $75.00 ENTITLEMENT TO ALTERNATIVE HOLIDAYS All alternative holidays to which an employee has become entitled to, but has not taken, and to which an employee becomes entitled to after 1 April 2004, are governed by the Holidays Act 2003. An employee is entitled to 11 public holidays, and payment for those holidays, if the holidays fall on days which, but for the public holidays, would otherwise be working days for the employee. An agreement between an employer and employee to observe any of the public holidays on another day must not diminish the total number of paid public holidays that would otherwise be available to the employee in any year. If an employee is required to work on a public holiday that falls on a day which, but for the public holiday, would otherwise be a working day for the employee, the employer is required to pay the employee for working on that day and provide the employee with an alternative holiday instead of the public holiday. An alternative holiday must be a whole working day (24 hours) off work for the employee, regardless of the amount of time the employee actually worked on the public holiday. On call but did not work on public holiday The Holidays Act 2003 codifies the case law decided under the Holidays Act 1981. When an employee is on call on a public holiday that falls on a day which, but for the public holiday, would otherwise be a working day for the employee, and the nature of the restriction imposed by the on call condition on the employee s freedom is such that, for all practical purposes the employee has not had a whole holiday, the employer must provide the employee with an alternative holiday. Taking alternative holidays The Holidays Act 2003 provides that an entitlement to an alternative holiday remains in force until it is taken, or: The employee has been paid for the holiday before the date on which the employee s employment ends; or
Public Holidays Holidays Act 2003 Page 9 The employee has been paid for the holiday because 12 months have passed since the employee s entitlement to the holiday arose and the employer agreed to the employee s request to exchange the entitlement for a payment. An alternative holiday must be taken by the employee on a day that is agreed between the employer and employee, and must be taken on a day that would otherwise be a working day for the employee. When employee s decision However, if within 12 months of the employee s entitlement to an alternative holiday having arisen, the employer and employee cannot agree when the employee is to take the alternative holiday, then the employee may determine when the alternative holiday is to be taken. However in making that determination the employee must take into account the employer s view as to when it is convenient for the employee to take the day. The employee must give the employer at least 14 days notice of his or her intention to take the alternative holiday. When employer s decision If 12 months have passed since an employee became entitled to an alternative holiday and the employee and employer cannot agree when the employee is to take the alternative holiday, then the employer may require the employee to take the alternative holiday. The employer must give the employee at least 14 days notice of the requirement to take the alternative holiday. Cashing up instead If 12 months have passed since an employee became entitled to an alternative holiday and the employee and employer cannot agree when the employee is to take the alternative holiday, then if the employee requests and the employer agrees to that request, the alternative holiday may be cashed up. Payment of alternative holidays The payment of the alternative holiday must be in the pay that relates to the pay period in which the alternative holiday occurs. If an employer and employee agree to the cashing up of an alternative holiday then the employer must the payment of the alternative holiday as soon as practicable after that agreement is reached. If an employee s employment has ended and the employee has not taken an alternative holiday to which the employee is entitled, then the payment of the alternative holiday must be in the pay that relates to the employee s final period of employment. Payment for alternative holidays When an employee takes an alternative holiday the employer must pay the employee not less than the employee s relevant daily pay for the day which is taken as the alternative holiday. If an employee s employment has ended and the employee has not taken an alternative holiday to which the employee is entitled, then the employer must pay the employee for that alternative holiday at the rate of the employee s relevant daily pay for the last day of the employment. If an employer and employee have agreed to the cashing up of an alternative holiday then the employer must pay the employee the amount agreed between the parties in exchange for the alternative holiday.
Public Holidays Holidays Act 2003 Page 10 OTHER ISSUES Employment agreements The Holidays Act 2003 requires that any employment agreement, within 12 months of the Act coming into force on 1 April 2004, comply with the Act and confirm the right of the employee to be paid at least the portion of the employee s relevant daily pay plus half that rate again for work on a public holiday. Existing Where an employment agreement, when the Act comes into force, provides that the employer may pay the employee for work on a public holiday as part of the employee s regular pay (a salaried employee may be employed on this basis) the employer may continue to do so for 12 months from 1 April 2004, but only if: An amount for working on public holidays has been previously genuinely negotiated into the employee s regular pay; and The amount can be demonstrated to meet the objectives of the Act to relating to time and a half; and The employer can provide evidence to support both. Any employment agreement existing as at 1 April 2004 must be amended either, within 12 months of 1 April 2004 or, on the date on which the employee s employment agreement is next amended, whichever is the earlier, to include a provision that confirms the right of an employee to be paid at least the portion of the employee s relevant daily pay plus half that rate again for work on a public holiday. An existing employment agreement may not state that the relevant daily pay of the employee already includes an amount that is calculated to comply with this provision. New Any employment agreement entered into after 1 April 2004 must include a provision a provision that confirms the right of an employee to be paid at least the portion of the employee s relevant daily pay plus half that rate again for work on a public holiday. A new employment agreement may not state that the relevant daily pay of the employee already includes an amount that is calculated to comply with this provision. Annual holidays An employee can only be on annual holiday on a day that is otherwise a working day. When an employee is taking annual holidays and a public holiday occurs on an otherwise working day, then that day must be treated as a public holiday and not as part of the employee s annual holidays. Employment has ended When an employee s employment ends and the employee is entitled to annual holidays, all or some of which have not been taken, then for the purposes of determining whether or not the employee is entitled to payment for a public holiday that occurs after the employment has ended, you must treat the remaining annual holiday entitlement as being taken immediately after the date on which the employee s employment came to an end. Where a public holiday occurs during the time a remaining annual leave entitlement is being taken at the end of the employee s employment, the employee is entitled to payment for the public holiday. Example 10: When the employee s employment ends the employee, who worked Monday to Friday, has 2 weeks of annual holiday entitlement remaining to be taken. The employee s employment ends the week before Easter. The public holidays that will occur on otherwise working days in the 2 weeks immediately after the date on which the employee s employment ended, are Good Friday, Easter Monday, and ANZAC Day (Friday). M T W T F S S M T W T F S S M T W AH AH AH AH PH X X PH AH AH AH PH X X AH AH AH
Public Holidays Holidays Act 2003 Page 11 In this example, the employee was entitled to 2 weeks of annual holidays which is met by the taking of 10 days as annual holidays. For the purposes of public holidays, it is useful to track the days on which the annual holidays would have been taken. If an employee s employment ends and the employee is not entitled to annual holidays, then the employee will not be entitled to any payment in respect of any public holidays that occur on otherwise working days after the employment ends. Refer to the a-z guide on Annual Holidays Holidays Act 2003, for more information. Sick leave and bereavement leave If an employee is scheduled to work on a public holiday that falls on a day which, but for the public holiday, would otherwise be a working day for the employee and the employee (or the employee s spouse or dependant) is sick or injured or the employee suffers a bereavement, then it follows that the employee is entitled to take the public holiday that he or she would otherwise taken or worked but for the illness, injury or bereavement. Parental leave If an employee is on parental leave when a public holiday falls there is no entitlement to the public holiday. Holiday and leave records The Holidays Act 2003 requires an employer to keep a holiday and leave record for each employee that records (amongst other things): The employee s name; and The date on which the employee s employment commenced; and The employee s current entitlement to annual holidays; and The cash value of any board or lodgings that is included in ordinary weekly pay and relevant daily pay; and The dates of, and payments for, any public holiday on which the employee worked; and The number of hours that the employee worked on any public holiday; and That date on which the employee became entitled to any alternative holiday; and The details of the dates of, and payments for, any public holiday or alternative holiday on which the employee did not wok, but for which the employee had an entitlement to holiday pay; and The details of any payment to which the employee is entitled which relates to payment in exchange for an alternative holiday; and The date of the termination of the employee s employment; and The amount paid to the employee as holiday pay upon termination of the employee s employment. A holiday and leave record must be kept in written form or in a form or in a manner that allows the information recorded to be easily accessed and converted into written form. The information entered in an employee s holiday and leave record must be kept for not less than 6 years after the date on which the information is entered. However, EMA Advice recommends that you keep the information for the duration of the employee s employment, and for not less than 6 years after the employee s employment ends. If a request for access to, or a copy of, or a certified extract from, information in relation to an employee is made by: The employee; or An authorised representative (of the employee); or A representative of a union of which the employee is a member; or A labour inspector; then An employer who receives such a request must comply with the request as soon as practicable by allowing that person to view the record or by providing a copy or certified extract of the information concerned. Refer to the a-z guide on Records and the Holidays Act 2003, for more information.
Public Holidays Holidays Act 2003 Page 12 ENFORCEMENT Rights and obligations The Holidays Act 2003 stipulates that when dealing each other under the Act an employer and employee must deal with each other in good faith. The Act also requires that an employer must inform a new employee, at the time the employee enters into an employment agreement with the employer, about: The employee s entitlements under the Act; and That the employee can obtain further information about his or her entitlements from either the union of which the employee is a member (if applicable) or the Department of Labour. The provisions of the Holidays Act 2003 may be enforced by: An employee; or An authorised representative (of an employee); or A representative of a union of which the employee is a member; or An employer; or A labour inspector. However, any entitlements that an employee enjoys that are additional to the minimum entitlements contained in this Act may be enforced only be an employee, an authorised representative (of an employee), or a representative of a union of which the employee is a member. While any of the above persons may enforce the Act, only a labour inspector may bring an action for a penalty against an employer for failure to comply with the Act. An action to recover unpaid holiday pay or unpaid leave pay may be brought by any person who may enforce the provisions of the Act. The Act may be enforced by applying to the Employment Relations Authority. Every labour inspector has, in addition to the powers conferred by this Act, powers of entry under the Employment Relations Act 2000. These powers enable a labour inspector to enter, at any reasonable hour, any premises where any person is employed or where the labour inspector has reasonable cause to believe that any person is employed, and to: Interview any person, or any employer, or any employee; and Require the production of, and to inspect and take copies from any holiday and leave record; and Require any employer to supply to the labour inspector a copy of the holiday and leave record or employment agreement or both of any employee of that employer; and Question any employer about compliance with the Holidays Act 2003. Determinations by labour inspectors The Holidays Act 2003 provides that, where an employer and employee are unable to agree, a labour inspector may make a determination about: For the purposes of the ordinary weekly pay or relevant daily pay of the employee, the cash value of any board or lodgings provided by the employer to the employee; and The relevant daily pay; and Whether a day would otherwise be a working day for the employee; and The amount of pay the employee must receive for working on a public holiday which occurs on a day that would otherwise be a working day for the employee.
Public Holidays Holidays Act 2003 Page 13 Penalties A labour inspector may bring an action against an employer, for the employer s failure to comply any of the following provisions (which are related to public holidays): Section 42: An employee s entitlement to 11 public holidays and payment for those holidays, in addition to annual holidays, where those holidays fall on days which, but for the public holidays, would otherwise be working days for the employee; and Section 45: An employee s entitlement to receive not less than the employee s relevant daily pay if the employee does not work in a public holiday that falls on a day that would otherwise be a working day for the employee; and Section 46: An employer must pay an employee time and a half for working on a public holiday; and Section 47: An employer who pays an employee for work on a public holiday as part of the employee s regular pay may continue to do so for 12 months after 1 April 2004 (when the Act comes into force); and Section 47A: A new employment agreement entered into after 1 April 2004 must include a provision that confirms the right of an employee to be paid at least the portion of the employee s relevant daily pay plus half that rate again for work on a public holiday; and Section 47B: An existing employment agreement must be amended either within 12 months of 1 April 2004 or on the date on which the employee s employment agreement is next amended, whichever is the earlier, to include a provision that confirms the right of an employee to be paid at least the portion of the employee s relevant daily pay plus half that rate again for work on a public holiday; and Section 48: An employer must pay an employee for a public holiday in the pay that relates to the pay period in which the holiday occurs; and Section 49: An employer must provide an employee who works on a public holiday that would otherwise be a working day for the employee with an alternative holiday; and Section 53: An employer must pay an employee not less than the employee s relevant daily pay for the day which is taken as the alternative holiday; and Section 54(3): If an employer and employee agree that an alternative holiday may be exchanged for payment the employer must pay the employee the amount agreed in exchange for the alternative holiday. CONCLUSION This a-z guide has been designed to help you understand your obligations and rights in respect of public holiday entitlements. It has set out for you the requirements of the Holidays Act 2003 and provided you with examples of how the provisions of the Act work. If you have any questions that remain unanswered by this guide, or need assistance with the drafting or redrafting of you employment agreements, or just want to talk to a real person about your public holiday issues, contact EMA Advice. The AdviceLine Team can be contacted on 0800 800 362 or 09 367 0909, or emailed at adviceline@ema.co.nz. The Team can put you in touch with your Employment Relations Consultant who will help you with your employment agreements so that you comply with the Act, before and after 1 April 2004. For advice and assistance call Email: AdviceLine@ema.co.nz [Publication date: February 2004]