Employment Relations Amendment Act 2010

1: Title
This Act is the Employment Relations Amendment Act 2010.
2: Commencement
1: Section 11
2: The rest of this Act comes into force on 1 April 2011.
3: Principal Act amended
This Act amends the Employment Relations Act 2000 2011-04-01 Employment Relations Act 2000 All of this Act except section 11 2011-07-01 Employment Relations Act 2000 Section 11 only
1: Amendments to principal Act
4: Interpretation
Section 5 intended agreement minimum entitlements relevant Acts
a: in sections 223A and 223B
b: in sections 223D to 223F .
5: Access to workplaces
Section 20 section 21 sections 20A
6: New section 20A inserted
The following section is inserted after section 20
20A: Representative of union must obtain consent to enter workplace
1: Before entering a workplace under section 21, a representative of a union must request and obtain the consent of the employer or a representative of the employer.
2: If a representative of a union makes a request under subsection (1)
a: the employer or representative of the employer must not unreasonably withhold consent; and
b: the employer or representative of the employer must advise the representative of the union of the employer's or representative of the employer's decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and
c: the consent of the employer or representative of the employer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 working days after the date on which the request was received.
3: If an employer or a representative of an employer withholds consent under subsection (2)
4: This section is subject to sections 22 and 23 (which specify when access to workplaces may be denied).
7: Conditions relating to access to workplaces
Section 21(5)
8: Penalty for certain acts in relation to entering workplace
Section 25
a: contravenes section 20A(2)(a) section 20A(1)
ab: fails to give reasons in writing for withholding consent to access to a workplace in accordance with section 20A(3) .
9: Good faith in bargaining for collective agreement
Section 32
6: To avoid doubt, this section does not prevent an employer from communicating with the employer's employees during collective bargaining (including, without limitation, the employer's proposals for the collective agreement) as long as the communication is consistent with subsection (1)(d) of this section and the duty of good faith in section 4.
10: Bargaining for individual employment agreement or individual terms and conditions in employment agreement
1: Section 63A(2)(a) , or the part of the intended agreement,
2: Section 63A(2)(b) or any part of the intended agreement
11: New section 64 inserted
The following section is inserted after section 63A
64: Employer must retain copy of individual employment agreement or individual terms and conditions of employment
1: When section 63A applies, the employer must retain a signed copy of the employee's individual employment agreement or the current terms and conditions of employment that make up the employee's individual terms and conditions of employment (as the case may be).
2: If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not—
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement.
3: If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee's—
a: individual employment agreement or current terms and conditions of employment retained under subsection (1)
b: intended agreement retained under subsection (2)
4: An employer who fails to comply with subsection (1), (2), or (3)
5: Before bringing an action under subsection (4)
a: give the employer written notice of the breach of this section; and
b: give the employer 7 working days to remedy the breach.
6: To avoid doubt, an intended agreement must not be treated as the employee's employment agreement if the employee has not—
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement.
12: Terms and conditions of employment where no collective agreement applies
Section 65
4: An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
13: When employment agreement may contain provision for trial period for 90 days or less
1: Section 67A(1) as defined in subsection (4)
2: Section 67A(4)
14: Object of this Part
Section 101(c)
15: New section 103A substituted
Section 103A
103A: Test of justification
1: For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2)
2: The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
3: In applying the test in subsection (2)
a: whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
b: whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
c: whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and
d: whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
4: In addition to the factors described in subsection (3)
5: The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—
a: minor; and
b: did not result in the employee being treated unfairly.
16: New section 125 substituted
Section 125
125: Remedy of reinstatement
1: This section applies if—
a: it is determined that the employee has a personal grievance; and
b: the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(1)(a)).
2: The Authority may, whether or not it provides for any of the other remedies specified in section 123, provide for reinstatement if it is practicable and reasonable to do so.
17: New section 134A inserted
The following section is inserted after section 134
134A: Penalty for obstructing or delaying Authority investigation
1: Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investigation, including failing to attend as a party before an Authority investigation (if required).
2: The power to award a penalty under subsection (1)
a: of its own motion; or
b: on the application of any party to the investigation.
18: Recovery of penalties
1: Section 135(2)(a) $5,000 $10,000
2: Section 135(2)(b) $10,000 $20,000
3: Section 135
4B: In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority or the court must consider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D
19: Power of Authority to order compliance
Section 137(1)(a)
iiia: an enforceable undertaking that section 223C(1)
iiib: an improvement notice that section 223D(6) .
20: Further provisions relating to compliance order by Authority
Section 138(1)(b)
iii: in the case of sections 223C, 223D(6)
21: Procedure in relation to mediation services
Section 147(2)
ac: may assist the parties to resolve a problem at an early stage, including, at the request of a party, discussing the problem with that party without any representative of that party being present; and .
22: New section 148A inserted
The following section is inserted after section 148
148A: Minimum entitlements
1: Minimum entitlements may be the subject of—
a: mediation under this Part; and
b: agreed terms of settlement under section 149(1).
2: Despite subsection (1)
23: Settlements
Section 149
3A: For the purposes of subsection (3)
24: New section 149A inserted
The following section is inserted after section 149
149A: Recommendation to parties
1: The parties to a problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a person employed or engaged by the chief executive to provide mediation services; and
b: on the date on which that person's recommendation will become final, unless the parties do not accept the recommendation.
2: The person on whom the power is conferred must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5)
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) subsection (1) subsection (1)(b)
4: If a party gives notice under subsection (3)
a: further mediation services may be provided in order to attempt to resolve the problem; and
b: either party to the problem may request those services be provided by a person other than the person who made the recommendation.
5: If a party does not give notice under subsection (3)
a: the recommendation becomes final and binding on, and enforceable by, the parties; and
b: a party may not seek to bring that recommendation before the Authority or the court, whether by action, appeal, application for review, or otherwise, except for enforcement purposes.
25: New section 151 substituted
Section 151
151: Enforcement of terms of settlement agreed or authorised
1: This section applies to—
a: any agreed terms of settlement that are enforceable by the parties under section 149(3):
b: any recommendation that is enforceable by the parties under section 149A(5)
c: any decision that is enforceable by the parties under section 150(3).
2: A matter referred to in subsection (1)
a: by compliance order under section 137; or
b: in the case of a monetary settlement, in 1 of the following ways:
i: by compliance order under section 137:
ii: by using, as if the settlement, recommendation, or decision were an order enforceable under section 141, the procedure applicable under section 141.
26: Role of Authority
Section 157
3: The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with—
a: this Act; or
b: any regulations made under this Act; or
c: the relevant employment agreement.
27: Duty of Authority to consider mediation
1: Section 159(1)(b) ; and ; or
iv: will be otherwise impractical or inappropriate in the circumstances; and .
2: Section 159
1A: If the matter before the Authority was brought by a Labour Inspector and relates to an employee's minimum entitlements, the Authority must, before giving a direction under subsection (1)(b) or (c), consider whether it is appropriate to direct that mediation or further mediation be used in order to prevent the matter being resolved in a manner that involves a reduction of those minimum entitlements.
28: New section 159A inserted
The following section is inserted after section 159
159A: Duty of Authority to prioritise previously mediated matters
1: This section applies if a matter comes before the Authority for investigation and determination and an attempt has been made to resolve the matter by mediation.
2: The Authority must give priority to investigating and determining the matter referred to in subsection (1) or (1A)
29: Powers of Authority
1: Section 160
2A: The Authority must allow cross-examination of a party or a person to the extent that is consistent with subsection (2).
2: Section 160
4: The Authority may not make a freezing order or search order as provided for in the High Court Rules.
30: Membership of Authority
Section 166(3)
31: New section 166A inserted
The following section is inserted after section 166
166A: Role of Chief of Authority
1: In addition to deciding matters as a member of the Authority, the Chief of the Authority is responsible for—
a: making any arrangements that are practicable to ensure that the members of the Authority discharge their functions—
i: in an orderly and expeditious way; and
ii: in a way that meets the objects of this Act; and
b: directing the education, training, and professional development of members of the Authority.
2: Without limiting subsection (1)
a: issue instructions (not inconsistent with this Act or regulations made under it) that outline expectations in respect of the process, timeliness, or any other matter relating to the hearing and determination of matters before the Authority; and
b: require particular members of the Authority to investigate particular matters.
3: For the purposes of section 169(3) subsection (2)(a)
32: Term of office
Section 169
3: Before recommending the reappointment of a member of the Authority under section 167, the Minister must, if the Chief of the Authority has provided a report in respect of the member under section 166A(3)
33: New sections 173 and 173A substituted
Section 173
173: Procedure
1: The Authority, in exercising its powers and performing its functions, must—
a: comply with the principles of natural justice; and
b: act in a manner that is reasonable, having regard to its investigative role.
2: The Authority may exercise its powers under section 160 in the absence of 1 or more of the parties.
3: However, if the Authority acts under subsection (2)
a: any material it receives that is relevant to the case of the absent party; and
b: an opportunity to comment on the material before the Authority takes it into account.
4: To avoid doubt, subsections (2) and (3) ex parte
5: The Authority may meet with the parties at the times and places fixed by a member of the Authority or an officer of the Authority.
6: Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an officer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time fixed for the meeting.
173A: Recommendation to parties
1: The parties to an employment relationship problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and
b: on the date on which the member's recommendation will become final, unless the parties do not accept the recommendation.
2: The member must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5)
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) subsection (1) subsection (1)(b)
4: If a party gives notice under subsection (3)
a: the Authority must continue to investigate and determine the matter; and
b: either party to the problem may request that the matter be further investigated and determined by a member other than the member who made the recommendation.
5: If a party does not give notice under subsection (3)
6: However, a recommendation under subsection (5)
34: Removal to court
1: Section 178
1: The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.
2: Section 178(3) any matter any matter on application under subsection (1)
35: New section 178A inserted
The following section is inserted after section 178
178A: Challenge in respect of dismissal of frivolous or vexatious proceedings
1: A party to a matter before the Authority that was dismissed because the Authority determined it was frivolous or vexatious under clause 12A of Schedule 2
2: A challenge under this section must be made in the prescribed manner within 28 days after the date that the matter is dismissed by the Authority.
3: The court must determine whether it considers the matter to be frivolous or vexatious.
4: If the court does not determine that the matter is frivolous or vexatious, it must order the Authority to investigate and determine the matter.
36: Application of other provisions
Section 190
3: In addition to the powers described in subsection (1), the court has the same powers of the High Court to make a freezing order and a search order as provided for in the High Court Rules.
37: New sections 223A to 223G inserted
The following sections are inserted after section 223
223A: Functions of Labour Inspector
The functions of a Labour Inspector include—
a: determining whether the provisions of the relevant Acts have been complied with; and
b: taking all reasonable steps to ensure that the relevant Acts are complied with; and
c: supporting employers, employees, and other persons in complying with the relevant Acts by providing information and education; and
d: preventing non-compliance with the relevant Acts by assisting employers to implement systems and practices that comply with the provisions of the relevant Acts; and
e: providing any other services that assist employers and employees to resolve, promptly and effectively, employment relationship problems arising under the relevant Acts. Enforceable undertakings
223B: Enforceable undertakings
1: A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforceable undertaking
a: rectify the breach of any provision of the relevant Acts; or
b: pay money owed to an employee under a provision of the relevant Acts; or
c: take any other action that the Labour Inspector determines is appropriate having regard to the nature of the breach of the provision of the relevant Act.
2: The employer may withdraw or vary an enforceable undertaking agreed under subsection (1)
223C: Enforcement of undertakings
1: An enforceable undertaking may be enforced by the Authority making a compliance order under section 137.
2: An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
3: If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141. Improvement notices
223D: Labour Inspector may issue improvement notice
1: A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any provision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.
2: An improvement notice issued under subsection (1)
a: the provision that the Labour Inspector reasonably believes that the employer is failing, or has failed, to comply with; and
b: the Labour Inspector's reasons for believing that the employer is failing, or has failed, to comply with the provision; and
c: the nature and extent of the employer's failure to comply with the provision; and
d: the steps that the employer could take to comply with the provision; and
e: the date before which the employer must comply with the provision.
3: An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
4: An improvement notice may be issued—
a: by giving it to the employer concerned; or
b: if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.
5: An improvement notice may not be issued in the period commencing on 17 December and ending with the close of 8 January in the following year.
6: An improvement notice may be enforced by the making by the Authority of a compliance order under section 137.
223E: Objection to improvement notice
1: An employer may, within 28 days after the improvement notice is issued to the employer, lodge with the Authority an objection to the notice.
2: The function of the Authority in respect of an objection is to determine—
a: whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and
b: the nature and extent of the employer's failure to comply with the provision; and
c: the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
3: The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit.
223F: Penalty
1: An employer who fails to comply with an improvement notice issued under section 223D
2: If subsection (1)
223G: Withdrawal of improvement notice
An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement notice does not prevent another improvement notice being served in relation to the same matter.
38: Actions by Labour Inspectors
Section 228
2: If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue an improvement notice under section 223D
39: Amendments to Schedules 2 and 3
1: Schedule 2 Part 1
2: Schedule 3 Part 2
2: Consequential amendments and transitional provision
40: Consequential amendments to other enactments
The enactments specified in Schedule 2 2011-04-01 Holidays Act 2003 Minors' Contracts Act 1969
41: Transitional provision
Section 64 section 11


1: Title
This Act is the Subordinate Legislation (Confirmation and Validation) Act 2010.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
1: General and technical provisions
3: Purpose of this Act
The purpose of this Act is to prevent the lapse (expiry or deemed revocation) of certain subordinate legislation that, by virtue of the Acts under which it is made, lapses at a stated time unless earlier confirmed or validated by Act of Parliament.
4: Validations to prevent expiry do not cure invalidity, etc
In the light of their purpose, the validations effected by sections 13 15 16
a: express an intention to give legislative force to the provisions of the enactments validated; or
b: apply to any reason for invalidating any of those enactments; or
c: override any presumption that would otherwise apply to any of those enactments.
5: Act binds the Crown
This Act binds the Crown.
6: Repeal
The Subordinate Legislation (Confirmation and Validation) Act 2009 2010-11-27 Subordinate Legislation (Confirmation and Validation) Act 2009
2: Confirmations and validations
7: Animal Products Act 1999
The Animal Products (Fees, Charges, and Levies) Amendment Regulations 2010 2010-11-27 Animal Products (Fees, Charges, and Levies) Amendment Regulations 2010
8: Biosecurity Act 1993
The Biosecurity (System Entry Levy) Order 2010 2010-11-27 Biosecurity (System Entry Levy) Order 2010
9: Civil Aviation Act 1990
The Civil Aviation (Safety) Levies Amendment Order 2009 2010-11-27 Civil Aviation (Safety) Levies Amendment Order 2009
10: Commodity Levies Act 1990
The following orders are confirmed:
a: Commodity Levies (Meat) Order 2010
b: Commodity Levies (Winegrapes) Order 2010 2010-11-27 Commodity Levies (Meat) Order 2010 Commodity Levies (Winegrapes) Order 2010
11: Customs and Excise Act 1996
The following orders are confirmed:
a: Excise and Excise-equivalent Duties (Tobacco Products Indexation) Amendment Order 2009
b: Excise and Excise-equivalent Duties Table (Alcoholic Beverages Indexation) Amendment Order 2010 2010-11-27 Excise and Excise-equivalent Duties (Tobacco Products Indexation) Amendment Order 2009
12: Gambling Act 2003
The Gambling (Problem Gambling Levy) Regulations 2010 2010-11-27 Gambling (Problem Gambling Levy) Regulations 2010
13: New Zealand Superannuation and Retirement Income Act 2001 and Social Security Act 1964
The following orders are validated and confirmed:
a: Social Security (Rates of Benefits and Allowances) Order 2010
b: Social Security (Rates of Benefits and Allowances) Order (No 2) 2010 2010-11-27 Social Security (Rates of Benefits and Allowances) Order 2010 Social Security (Rates of Benefits and Allowances) Order (No 2) 2010
14: Road User Charges Act 1977
The following orders are confirmed:
a: Road User Charges (Rates) Order 2010
b: Road User Charges (Rates) Order (No 2) 2010 2010-11-27 Road User Charges (Rates) Order 2010 Road User Charges (Rates) Order (No 2) 2010
15: Tariff Act 1988
The following orders are validated and confirmed:
a: Tariff (AANZFTA) Amendment Order 2009
b: Tariff (Malaysia Free Trade Agreement) Amendment Order 2010 2010-11-27 Tariff (AANZFTA) Amendment Order 2009
16: War Pensions Act 1954
The War Pensions (Rates of Pensions, Lump Sum Payments, and Allowances) Order 2010 2010-11-27 War Pensions (Rates of Pensions, Lump Sum Payments, and Allowances) Order 2010


Holidays Amendment Act 2010

1: Title
This Act is the Holidays Amendment Act 2010.
2: Commencement
1: Section 7(2) Schedule 1 section 29
2: The rest of this Act comes into force on 1 April 2011.
3: Principal Act amended
This Act amends the Holidays Act 2003 2010-11-27 Holidays Act 2003 Section 7(2) and Schedule 1 as far as it relates to section 29 of the principal Act 2011-04-01 Holidays Act 2003 The rest of this Act. (Section 7(2) and Schedule 1 as far as it relates to section 29 of the principal Act have already been done)
1: Amendments to principal Act
4: Interpretation
1: Section 5(1) average daily pay section 9A(2) closedown period discretionary payment
a: means a payment that the employer is not bound, by the employee’s employment agreement, to pay the employee; but
b: does not include a payment that the employer is bound, by the employee's employment agreement, to pay the employee, even though—
i: the amount to be paid is not specified in that employment agreement and the employer may determine the amount to be paid; or
ii: the employer is required under that employment agreement to make the payment only if certain conditions are met .
2: Section 5(1) public holiday public holiday
a: means a day specified in section 44(1); and
b: if there is a written agreement under section 44A or 44B
i: includes a calendar day or period of 24 hours agreed to be treated as a public holiday; but
ii: excludes the day (or part of a day) specified in section 44(1) agreed not to be treated as a public holiday .
5: New sections 9 and 9A substituted
Section 9
9: Meaning of relevant daily pay
1: In this Act, unless the context otherwise requires, relevant daily pay
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 had the employee worked on the day concerned:
ii: payments for overtime if those payments would have otherwise been received had the employee worked 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: However, an employment agreement may specify a special rate of relevant daily pay for the purpose of calculating payment for a public holiday, an alternative holiday, sick leave, or bereavement leave if the rate is equal to, or greater than, the rate that would otherwise be calculated under subsection (1)
3: To avoid doubt, if subsection (1)(a)
9A: Average daily pay
1: An employer may use an employee's average daily pay for the purposes of calculating payment for a public holiday, an alternative holiday, sick leave, or bereavement leave if—
a: it is not possible or practicable to determine an employee's relevant daily pay under section 9(1)
b: the employee's daily pay varies within the pay period when the holiday or leave falls.
2: The employee's average daily pay must be calculated in accordance with the following formula: a b where— a is the employee's gross earnings for the 52 calendar weeks before the end of the pay period immediately before the calculation is made b is the number of whole or part days during which the employee earned those gross earnings, 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.
3: To avoid doubt, if subsection (2)
6: New section 11 substituted
Section 11
11: Labour Inspector may determine ordinary weekly pay, relevant daily pay, and average 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
c: average daily pay under section 9A
2: A Labour Inspector may determine the amount of the employee's ordinary weekly pay, relevant daily pay, or average daily pay (as the case may be).
3: In making a determination, a Labour Inspector must apply the provisions of section 8, 9 9A
7: Determination of what would otherwise be working day
1: Section 12(3)
d: whether, but for the day being a public holiday, an alternative holiday, or a day on which the employee was on sick leave or bereavement leave, the employee would have worked on the day concerned.
2: Section 12
3A: If the public holiday, alternative holiday, or day on which the employee was on sick leave or bereavement leave falls during a closedown period, the factors listed in subsection (3) must be taken into account as if the closedown period were not in effect.
8: Meaning of gross earnings
1: Section 14(a)(ii) (except non-taxable payments to reimburse the employee for any actual costs incurred by the employee related to his or her employment) allowances
2: Section 14(c)
iv: any payment made in accordance with section 28B
9: Purpose of this subpart
Section 15
15: Purpose of this subpart
The purpose of this subpart is to—
a: provide all employees with a minimum of 4 weeks’ annual holidays to be paid at the time the holidays are taken; and
b: enable an employee to request that up to 1 week of his or her annual holidays entitlement be paid out; and
c: require employers to pay employees at the end of their employment for annual holidays not taken or paid out; and
d: enable employers to manage their businesses, taking into account the annual holiday entitlements of their employees.
10: New heading and sections 28A to 28F inserted
The following heading and sections are inserted after section 28 Portion of annual holidays may be paid out
28A: Employee may request portion of annual holidays be paid out
1: An employee may request that his or her employer pay out a portion of the employee's entitlement to annual holidays.
2: A request under subsection (1)
a: must be in writing; and
b: may be made on 1 or more separate occasions until a maximum of 1 week of the employee's annual holidays is paid out in each entitlement year.
3: If an employee makes a request under subsection (1)
a: consider the request within a reasonable time; and
b: advise the employee in writing as to whether the employer agrees to the request; and
c: if the employer agrees to the request, comply with section 28B
4: An employer—
a: may decline an employee's request; and
b: is not required to provide the employee with a reason for declining the request.
5: In this section, entitlement year
a: means a period of 12 months continuous employment beginning on the anniversary of the employee's employment; and
b: includes a period of 12 months continuous employment described in section 16(2).
28B: Payment for annual holidays paid out
1: If an employer agrees to pay out a portion of the employee's annual holidays under section 28A(3)(c)
a: in accordance with section 21(2); and
b: as soon as practicable after the employer has agreed to the employee's request under that provision.
2: If an employer has incorrectly paid out a portion of the employee's annual holidays where the employee did not make a request for the payment, the employee's entitlement to take the portion of annual holidays concerned remains in force as if the payment had not been made.
28C: Requirement to request payout prohibited
1: A requirement that an employee must make a request under section 28A
2: Despite subsection (1) section 28A
28D: Requirement to make payout prohibited
A requirement for an employer to pay out a portion of an employee's entitlement to annual holidays must not be—
a: a term or condition of the employee's employment (whether contained in a written employment agreement or otherwise); or
b: raised in negotiations between the employer and employee about the employee's terms and conditions relating to salary or wages.
28E: Employer may have policy preventing payout
1: An employer may adopt a policy that allows the employer to not consider a request under section 28A
2: A policy under subsection (1)
a: the whole of the employer’s business; or
b: some parts of the employer's business but not to others.
3: If an employer has a policy under subsection (1) section 28A
28F: Labour Inspector may determine payout
1: This section applies if an employer has agreed to an employee's request to pay out a portion of the employee's annual holidays under section 28A
a: the portion of annual holidays that are to be, or have been, paid out; or
b: the amount that the employer is required to pay the employee for the annual holidays that are to be, or have been, paid out.
2: A Labour Inspector may determine either or both of the following:
a: the portion of annual holidays paid out or to be paid out:
b: the amount payable for the annual holidays paid out or to be paid out.
11: Purpose of this subpart
Section 43
b: to provide for the transfer of public holidays (whether in whole or in part): .
12: New sections 44A to 44C substituted
Section 44A
44A: Transferring part of public holiday
1: This section applies if—
a: an employee is to start work on a day and finish work on the following day; and
b: 1 or both of those days are specified in section 44(1).
2: If the criterion in subsection (3)
a: that part of 1 or both days specified in section 44(1) is to be treated as not part of a public holiday; and
b: that,—
i: if the agreement relates to only 1 day specified in section 44(1), a period of 24 hours is to be treated as a public holiday if the period—
A: is to start or finish during the day specified in section 44(1); and
B: includes the period from when the employee is to start work to when the employee is to finish work:
ii: if the agreement relates to 2 days specified in section 44(1), 2 separate periods of 24 hours are to be treated as public holidays if each period—
A: is to start or finish during the days specified in section 44(1); and
B: includes the period from when the employee is to start work to when the employee is to finish work.
3: The criterion is that the purpose of the transfer is not to avoid the employee's entitlements under sections 50 and 56 for working on a public holiday, although the transfer may have that effect.
4: Where an agreement to transfer part of a public holiday applies, the employee’s entitlements under sections 50 and 56 apply only if the employee works during the period of 24 hours or 2 separate periods of 24 hours (as the case may be) to which that part of the public holiday has been transferred.
5: To avoid doubt, an agreement under this section must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year. Example
An employee is to work from 10 pm on 24 April to 6 am on Anzac Day and from 10 pm on Anzac Day to 6 am on 26 April. The employer and employee can agree to treat 10 pm to midnight on Anzac Day as not part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. Just when the 24-hour period starts before or finishes after a work period is a matter for the parties to agree on. For instance, they could agree that it runs from midday on 24 April to midday on Anzac Day.
44B: Transferring whole of public holiday
1: An employer and employee may agree in writing (whether in an employment agreement or otherwise)—
a: that a public holiday specified in section 44(1) is to be observed by the employee on another calendar day or during a period of 24 hours (a transfer subsection (2)
b: the calendar day or period of 24 hours to which the public holiday is transferred is to be treated as the employee's public holiday for the purposes of this subpart.
2: The criteria are that—
a: the public holiday specified in section 44(1) to be transferred—
i: is identified; and
ii: would otherwise be a working day for the employee; and
b: the calendar day or period of 24 hours to which the public holiday is to be transferred—
i: is identified or identifiable; and
ii: would otherwise be a working day for the employee; and
iii: is not another public holiday or part of a public holiday; and
c: the purpose of the transfer is not to avoid the employee’s entitlements under sections 50 and 56 for working on a public holiday, although the transfer may have that effect.
3: Where an agreement to transfer a public holiday applies, the employee’s entitlements under sections 50 and 56 apply only if the employee works on the identified or identifiable calendar day or period of 24 hours to which the public holiday has been transferred.
4: To avoid doubt, an agreement under this section—
a: may be made in relation to 1 or more of the public holidays specified in section 44(1); but
b: must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year.
44C: Employer may have policy preventing transfer
1: An employer may adopt a policy that allows the employer to not enter into agreements that enable all or part of a public holiday being transferred under section 44A 44B
2: A policy under subsection (1)
a: the whole of the employer’s business; or
b: some parts of the employer's business but not to others.
3: If an employer adopts a policy under subsection (1) sections 44A and 44B
13: Requirements for alternative holiday
1: Section 57(1) ; and
d: not be taken on a public holiday.
2: Section 57
2: If an employer and employee cannot agree under subsection (1)(a) on when an alternative holiday is to be taken, the day must be taken on a date determined, on a reasonable basis, by the employer.
3: If subsection (2)
14: Proof of sickness or injury
1: Section 68
1A: Despite subsection (1), the employer may require proof of sickness or injury within 3 consecutive calendar days if the employer—
a: informs the employee as early as possible that the proof is required; and
b: agrees to meet the employee's reasonable expenses in obtaining the proof.
2: Section 68(3) (within the meaning of the Medical Practitioners Act 1995)
3: Section 68
5: In this section, medical practitioner
15: Penalty for non-compliance
1: Section 75(1)(a) $5,000 $10,000
2: Section 75(1)(b) $10,000 $20,000
3: Section 75(2)
ba: sections 28A and 28B .
16: Holiday and leave record
1: Section 81(2)
ha: the portion of any annual holidays that have been paid out in each entitlement year (if applicable):
hb: the date and amount of payment, in each entitlement year, for any annual holidays paid out under section 28B .
2: Section 81(2)
ja: the day or part of any public holiday specified in section 44(1) agreed to be transferred under section 44A or 44B .
17: Consequential amendments to principal Act
The principal Act Schedule 1
2: Amendments to other Acts and transitional provision
18: Amendments to other Acts
The Acts listed in Schedule 2 2011-04-01 Employment Relations Act 2000 Parental Leave and Employment Protection Act 1987
19: Transitional provision
To avoid doubt, a request under section 28A section 10


1: Title
This Act is the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act amends the Electoral Act 1993 2010-12-16 Electoral Act 1993
4: Disqualifications for registration
Section 80(1)
d: a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010: .
5: Detention in prison pursuant to conviction
1: The heading to section 81 conviction sentence of imprisonment
2: Section 81(1)(b) ; and
3: Section 81(1)(c)
4: Section 81
3: In subsection (1), prison manager
6: Existing status under section 80(1)(d) of principal Act not affected
To avoid doubt,—
a: a person who is disqualified for registration as an elector by section 80(1)(d)
b: a person who is not disqualified for registration as an elector by section 80(1)(d)
c: section 4 section 17