Holidays Act 2003

1: Title
This Act is the Holidays Act 2003.
1: Preliminary provisions
2: Commencement
1: Subpart 2 Schedule 1
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:
e: family family Section 3(e) inserted 1 April 2019 section 18 Domestic Violence—Victims' Protection Act 2018 Section 3(e) amended 1 July 2019 section 259(1) Family Violence Act 2018
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, bereavement leave, and family
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
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. Section 4(2)(b)(i) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 4(2)(b)(i) amended 1 April 2019 section 19 Domestic Violence—Victims' Protection Act 2018
5: Interpretation
1: In this Act, unless the context otherwise requires,— annual holiday subpart 1 authorised representative section 236 average daily pay section 9A(2) average weekly earnings bereavement leave subpart 4 closedown period section 29 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 employee section 6 Employment Relations Act 2000 existing collective agreement existing employment agreement existing individual employment agreement family violence section 9 family violence leave subpart 5 former Act Accident Compensation Act 2001 section 6(1) gross earnings section 14 holiday
a: means—
i: a paid annual holiday provided under subpart 1
ii: a paid public holiday provided under subpart 3
b: includes any alternative holiday an employee is entitled to under section 56 section 59 holiday and leave record 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
c: in relation to family family section 72C leave pay , bereavement leave, or family ordinary weekly pay section 8 partner spouse or partner person affected by family violence section 72B public holiday
a: means a day specified in section 44(1)
b: if there is a written agreement under section 44A 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) relevant daily pay section 9 sick leave subpart 4
2: In this Act, unless the context otherwise requires,—
a: the terms Authority court department employer employment agreement Labour Inspector union section 5
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
3: In this Act, a reference to—
a: an employee
b: an employer Section 5(1) average daily pay inserted 1 April 2011 section 4(1) Holidays Amendment Act 2010 Section 5(1) closedown period inserted 1 April 2011 section 4(1) Holidays Amendment Act 2010 Section 5(1) discretionary payment inserted 1 April 2011 section 4(1) Holidays Amendment Act 2010 Section 5(1) domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) domestic violence leave repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) existing collective agreement inserted 22 October 2004 section 3 Holidays Amendment Act 2004 Section 5(1) existing individual employment agreement inserted 22 October 2004 section 3 Holidays Amendment Act 2004 Section 5(1) family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) family violence leave inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) former Act amended 1 April 2019 section 20(2) Domestic Violence—Victims' Protection Act 2018 Section 5(1) in advance inserted 1 April 2019 section 20(3) Domestic Violence—Victims' Protection Act 2018 Section 5(1) in advance amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) leave pay amended 1 April 2019 section 20(4) Domestic Violence—Victims' Protection Act 2018 Section 5(1) leave pay amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) partner inserted 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 5(1) person affected by domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) person affected by family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 5(1) public holiday substituted 1 April 2011 section 4(2) Holidays Amendment Act 2010 Section 5(1) spouse repealed 26 April 2005 section 7 Relationships (Statutory References) Act 2005
5A: Provisions affecting application of amendments to this Act
Schedule 1AA Section 5A inserted 1 April 2016 section 4 Holidays Amendment Act 2016
6: 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 subpart 5 Section 6(3)(b) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017
6A: Relationship between Act and fair pay agreements
Section 6A repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023
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) 1981 No 15 s 7 Key terms defined
8: Meaning of ordinary weekly pay
1: In this Act, unless the context otherwise requires, ordinary weekly 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: The following table is small in size and contains a 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). 1981 No 15 s 4 Section 8(1)(c)(iv) amended 19 December 2007 section 119 Taxation (KiwiSaver) Act 2007 Section 8(1)(c)(v) added 19 December 2007 section 119 Taxation (KiwiSaver) Act 2007
9: Meaning of relevant daily pay
1: In this Act, unless the context otherwise requires, relevant daily pay bereavement leave, or family
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, bereavement leave, or family
3: 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) Section 9 substituted 1 April 2011 section 5 Holidays Amendment Act 2010 Section 9(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 9(1) amended 1 April 2019 section 21 Domestic Violence—Victims' Protection Act 2018 Section 9(2) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 9(2) amended 1 April 2019 section 21 Domestic Violence—Victims' Protection Act 2018
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, bereavement leave, or family
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: The following table is small in size and contains a 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) 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) Section 9A inserted 1 April 2011 section 5 Holidays Amendment Act 2010 Section 9A(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 9A(1) amended 1 April 2019 section 22 Domestic Violence—Victims' Protection Act 2018
10: Cash value of board or lodgings included in ordinary weekly pay and relevant daily pay
1: For the purposes of section 8 section 9
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. 1981 No 15 s 5
10A: Treatment of payments made under Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
For the purposes of sections 8 9 14
a: includes payments made to the employee under section 14 Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
b: excludes payments made to the employee under section 19 Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 Section 10A inserted 25 February 2016 section 32(2) Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
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
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 Section 11 substituted 1 April 2011 section 6 Holidays Amendment Act 2010 Determination of what would otherwise be working day
12: Determination of what would otherwise be working day
1: This section applies for the purpose of determining an employee’s entitlements to a public holiday, an alternative holiday, to sick leave, to bereavement leave, or to family
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.
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 or family
3A: If the public holiday, alternative holiday, or day on which the employee was on sick leave or bereavement leave or family
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. Section 12(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 12(1) amended 1 April 2019 section 23(1) Domestic Violence—Victims' Protection Act 2018 Section 12(3)(d) added 1 April 2011 section 7(1) Holidays Amendment Act 2010 Section 12(3)(d) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 12(3)(d) amended 1 April 2019 section 23(2) Domestic Violence—Victims' Protection Act 2018 Section 12(3A) inserted 27 November 2010 section 7(2) Holidays Amendment Act 2010 Section 12(3A) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 12(3A) amended 1 April 2019 section 23(3) Domestic Violence—Victims' Protection Act 2018
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
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
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 (except non-taxable payments to reimburse the employee for any actual costs incurred by the employee related to his or her employment)
iii: payment for an annual holiday, a public holiday, an alternative holiday, sick leave, bereavement leave, or family
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 Accident Compensation Act 2001
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 Accident Compensation Act 2001
iii: any payment for absence from work while the employee is on volunteers leave Volunteers Employment Protection Act 1973
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:
iv: any payment made in accordance with section 28B 1981 No 15 s 4 Section 14(a)(ii) amended 1 April 2011 section 8(1) Holidays Amendment Act 2010 Section 14(a)(iii) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 14(a)(iii) amended 1 April 2019 section 24(1) Domestic Violence—Victims' Protection Act 2018 Section 14(a)(vii) amended 1 April 2019 section 24(2) Domestic Violence—Victims' Protection Act 2018 Section 14(b)(ii) amended 1 April 2019 section 24(2) Domestic Violence—Victims' Protection Act 2018 Section 14(b)(iii) amended 1 April 2004 section 15 Volunteers Employment Protection Amendment Act 2004 Section 14(c)(iii) added 19 December 2007 section 121 Taxation (KiwiSaver) Act 2007 Section 14(c)(iv) added 1 April 2011 section 8(2) Holidays Amendment Act 2010
2: Holiday and leave entitlements
1: Annual holidays
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. Section 15 substituted 1 April 2011 section 9 Holidays Amendment Act 2010 Entitlement to annual holidays
16: Entitlement to annual holidays
1: After the end of each completed 12 months of continuous employment, an employee is entitled to not less than 4 weeks’
2: For the purposes of subsection (1), the 12 months of continuous employment—
a: includes any period during which the employee was—
i: on paid holidays or leave under this Act (for example, family
ii: on parental leave under the Parental Leave and Employment Protection Act 1987
iii: on volunteers leave within the meaning of the Volunteers Employment Protection Act 1973
iv: receiving weekly compensation under the Accident Compensation Act 2001
v: on unpaid sick leave or unpaid bereavement leave or unpaid family
vi: on unpaid leave for any other reason for a period of no more than 1 week; but
b: unless otherwise agreed, does not include any other unpaid leave, being leave other than that referred to in paragraph (a)(v) and (vi).
3: If, for the purposes of subsection (2)(b), an employer and employee agree that any period of unpaid leave of more than 1 week is to be included in the employee’s 12 months of continuous employment, the divisor of 52 to be used for the purposes of calculating the employee’s average weekly earnings must be reduced by the number of whole or part weeks greater than 1 week that the employee was on the unpaid leave.
4: An employee's entitlement to annual holidays remains in force until the employee has—
a: taken all of the entitlement as paid holidays; or
b: been paid out under section 28B 1981 No 15 s 11 Section 16(1) amended 1 April 2007 section 42 Section 16(2)(a)(i) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 16(2)(a)(i) amended 1 April 2019 section 25(1) Domestic Violence—Victims' Protection Act 2018 Section 16(2)(a)(iii) substituted 1 April 2004 section 15 Volunteers Employment Protection Amendment Act 2004 Section 16(2)(a)(iv) amended 1 April 2019 section 25(2) Domestic Violence—Victims' Protection Act 2018 Section 16(2)(a)(v) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 16(2)(a)(v) amended 1 April 2019 section 25(3) Domestic Violence—Victims' Protection Act 2018 Section 16(4) substituted 1 April 2011 section 17 Holidays Amendment Act 2010
17: How employee’s entitlement to annual holidays may be met
1: An employer and employee may agree on how an employee’s entitlement to 4 weeks’
2: If an employer and employee cannot agree on how an employee’s entitlement to 4 weeks’
3: In making a determination, the Labour Inspector may take into account any matters that the Labour Inspector thinks fit, including the matters specified in section 12(3) Section 17(1) amended 1 April 2007 section 42 Section 17(2) amended 1 April 2007 section 42
18: Taking of annual holidays
1: An employer must allow an employee to take annual holidays within 12 months after the date on which the employee’s entitlement to the holidays arose.
2: If an employee elects to do so, the employer must allow the employee to take at least 2 weeks of his or her annual holidays entitlement in a continuous period.
3: When annual holidays are to be taken by the employee is to be agreed between the employer and employee.
4: An employer must not unreasonably withhold consent to an employee’s request to take annual holidays.
19: When employee may be required to take annual holidays
1: An employer may require an employee to take annual holidays if—
a: the employer and employee are unable to reach agreement under section 18(3)
b: section 32
2: If subsection (1) applies, an employer must give the employee not less than 14 days’ notice of the requirement to take the annual holidays.
20: Employer may allow employee to take annual holidays in advance
An employer may allow an employee to take an agreed portion of the employee’s annual holidays entitlement in advance. Payment for annual holidays
21: Calculation of annual holiday pay
1: If an employee takes an annual holiday after the employee’s entitlement to the holiday has arisen, the employer must calculate the employee’s annual holiday pay in accordance with subsection (2).
2: Annual holiday pay must be—
a: for the agreed portion of the annual holidays entitlement; and
b: at a rate that is based on the greater of—
i: the employee’s ordinary weekly pay as at the beginning of the annual holiday; or
ii: the employee’s average weekly earnings for the 12 months immediately before the end of the last pay period before the annual holiday. 1981 No 15 s 16
22: Calculation of annual holiday pay if holiday taken in advance
1: If an employee takes an annual holiday in advance, the employer must calculate the employee’s annual holiday pay in accordance with subsection (2).
2: Annual holiday pay must be—
a: for the agreed portion of the annual holidays entitlement; and
b: at a rate that is based on the greater of—
i: the employee’s ordinary weekly pay as at the beginning of the annual holiday; or
ii: the employee’s average weekly earnings for—
A: the 12 months immediately before the end of the last pay period before the annual holiday if the employee has worked for the employer for not less than 12 months; or
B: the period of employment before the end of the last pay period before the annual holiday if the employee has worked for the employer for less than 12 months.
3: To avoid doubt, for the purposes of subsection (2)(b)(ii)(B), the divisor of 52 for the purpose of calculating the employee’s average weekly earnings is to be reduced so that it represents the number of whole or part weeks that the employee worked for the employer in the period of employment. 1981 No 15 s 17
23: Calculation of annual holiday pay if employment ends within 12 months
1: Subsection (2) applies if—
a: the employment of an employee comes to an end; and
b: the employee is not entitled to annual holidays because he or she has worked for less than 12 months for the purposes of section 16
2: An employer must pay the employee 8%
a: paid to the employee for annual holidays taken in advance; or
b: paid in accordance with section 28 Section 23(2) amended 1 April 2007 section 42
24: Calculation of annual holiday pay if employment ends and entitlement to holidays has arisen
1: Subsection (2) applies if—
a: the employment of an employee comes to an end; and
b: the employee is entitled to annual holidays; and
c: the employee has not taken annual holidays or has taken only some of them.
2: An employer must pay the employee for the portion of the annual holidays entitlement not taken at a rate that is based on the greater of—
a: the employee’s ordinary weekly pay as at the date of the end of the employee’s employment; or
b: the employee’s average weekly earnings during the 12 months immediately before the end of the last pay period before the end of the employee’s employment.
25: Calculation of annual holiday pay if employment ends before further entitlement has arisen
1: Subsection (2) applies if—
a: the employment of an employee comes to an end; and
b: the employee is not entitled to annual holidays for a second or subsequent 12-month period of employment because the employee has not worked for the whole of the second or subsequent 12 months for the purposes of section 16
2: An employer must pay the employee 8%
a: paid to the employee for annual holidays taken in advance; or
b: paid in accordance with section 28 Section 25(2) amended 1 April 2007 section 42
26: Payments may be cumulative
To avoid doubt,—
a: gross earnings for the purposes of section 25(2) section 24(2)
b: an employee may be entitled to payments for annual holidays under both section 24 section 25
27: When payment for annual holidays must be made
1: An employer must pay an employee for an annual holiday before the holiday is taken unless—
a: the employer and employee agree that the employee is to be paid in the pay that relates to the period during which the holiday is taken; or
b: the employee’s employment has come to an end.
2: If subsection (1)(b) applies, the employer must pay the annual holiday pay in the pay that relates to the employee’s final period of employment.
28: When annual holiday pay may be paid with employee’s pay
1: Despite section 27
a: the employee—
i: is employed in accordance with section 66
ii: works for the employer on a basis that is so intermittent or irregular that it is impracticable for the employer to provide the employee with 4 weeks’ section 16
b: the employee agrees in his or her employment agreement; and
c: the annual holiday pay is paid as an identifiable component of the employee’s pay; and
d: the annual holiday pay is paid at a rate not less than 8%
2: If an employee to whom subsection (1)(a)(i) applies is employed by the same employer beyond 12 months on a series of fixed-term agreements of less than 12 months each, the employer and employee may agree that the employee is to be paid in accordance with subsection (1) regardless of the number of agreements.
3: If the fixed-term agreement of an employee to whom subsection (1)(a)(i) applies is followed by permanent employment with the same employer, the employee—
a: becomes entitled to paid annual holidays at the end of 12 months’ continuous employment (including the period of that fixed-term agreement) under section 16
b: the amount of the holiday pay that the employee is entitled to be paid for the holidays is reduced by the amount that the employee has already received under subsection (1).
4: If an employer has incorrectly paid annual holiday pay with an employee’s pay in circumstances where subsection (1) does not apply and the employee’s employment has continued for 12 months or more, then, despite those payments, the employee becomes entitled to annual holidays in accordance with section 16 Section 28(1)(a)(ii) amended 1 April 2007 section 42 Section 28(1)(d) amended 1 April 2007 section 42 Portion of annual holidays may be paid out Heading inserted 1 April 2011 section 10 Holidays Amendment Act 2010
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), an employer must—
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) Section 28A inserted 1 April 2011 section 10 Holidays Amendment Act 2010
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)
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. Section 28B inserted 1 April 2011 section 10 Holidays Amendment Act 2010
28C: Requirement to request payout prohibited
1: A requirement that an employee must make a request under section 28A
2: Despite subsection (1), an employment agreement may set out the process for making a request under section 28A Section 28C inserted 1 April 2011 section 10 Holidays Amendment Act 2010
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. Section 28D inserted 1 April 2011 section 10 Holidays Amendment Act 2010
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) may apply to—
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 Section 28E inserted 1 April 2011 section 10 Holidays Amendment Act 2010
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. Section 28F inserted 1 April 2011 section 10 Holidays Amendment Act 2010 Closedown periods
29: Meaning of closedown period
In this section and sections 12(3A) 30 to 35 closedown period
a: closes the employer’s operations or discontinues the work of 1 or more employees; and
b: requires the employer's Section 29 amended 27 November 2010 section 17 Holidays Amendment Act 2010 Section 29(b) amended 27 November 2010 section 17 Holidays Amendment Act 2010
30: Frequency of closedown periods
1: For the purposes of sections 31 to 35
2: However, subsection (1) does not prevent an employer and employee from agreeing—
a: that the employer may close his or her operations and discontinue the work of the employee at other times; and
b: on the arrangements that will apply during those times.
3: If subsection (2) applies, sections 32 to 35
31: Employer may have different closedown period for each part of business
To avoid doubt, an employer may have different closedown periods for each separate part of the employer’s business.
32: Requirement to take annual holidays during closedown period
1: An employee who is entitled to annual holidays at the commencement of a closedown period must, if required to do so by his or her employer, take annual holidays during the closedown period whether or not the employee agrees to take the holidays.
2: An employee who is not yet entitled to annual holidays at the commencement of a closedown period must, if required to do so by his or her employer, discontinue the employee’s work during a closedown period.
3: If this section applies, the employer must give the employee not less than 14 days’ notice of the requirement to take the annual holidays or to discontinue the work (as the case may be).
33: Payment of annual holiday pay during closedown period for employee entitled to annual holidays
1: This section applies to an employee who, at the commencement of a closedown period, is entitled to annual holidays under section 16
2: To the extent that the employee has an annual holiday entitlement, the period of the closedown must be taken by the employee as annual holidays.
3: If an employee does not have an annual holidays entitlement that covers the whole period of the closedown, the employer and employee may agree that the employee—
a: may take some of the closedown period as annual holidays in advance under section 20
b: be paid for that period in accordance with section 22
4: The employer must pay the employee annual holiday pay calculated in accordance with section 21
34: Calculation of pay during closedown period for employee not entitled to annual holidays
1: This section applies to an employee who, at the commencement of a closedown period, is not entitled to annual holidays under section 16
2: An employer must, in respect of the closedown period, pay the employee 8%
a: paid to the employee for annual holidays taken in advance; or
b: paid in accordance with section 28
3: An employee who is paid annual holiday pay calculated in accordance with subsection (2) is not otherwise entitled—
a: to any annual holidays for the period of employment up to the date of the beginning of the closedown period; or
b: to any remuneration for the period of the closure or discontinuance of work.
4: This section does not prevent an employer and employee from agreeing that the employee may take the period of the closedown as annual holidays in advance under section 20 section 22 1981 No 15 s 18(1)–(4), (7) Section 34(2) amended 1 April 2007 section 42
35: Effect of closedown period on anniversary date of employee not entitled to annual holidays
1: If an employee is required under section 32(2) section 16(1) 28A(5)
2: However, to avoid having a different date in each year on which the employee becomes entitled to annual holidays, the employer may nominate a date which must be treated as the date on which the closedown begins provided that the date nominated is reasonably proximate to the actual beginning of the closedown period. 1981 No 15 s 18(5) Section 35(1) amended 1 April 2011 section 17 Holidays Amendment Act 2010 Relationship between annual holidays and other entitlements
36: Employer may allow employee taking annual holidays to take sick leave
1: This section applies to an employee who is taking annual holidays under this subpart and who then—
a: becomes sick or injured; or
b: has a spouse or partner
2: An employee may, with his or her employer’s agreement, take any period of sickness or injury that the employee would otherwise take as an annual holiday as sick leave. 1981 No 15 s 14 Section 36(1)(b) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005
37: Employer must allow employee taking annual holidays to take bereavement leave
1: This section applies to an employee who is taking annual holidays under this subpart and who then suffers a bereavement as described in section 69(2)
2: The employer must allow the employee to take any period related to a bereavement that he or she would otherwise take as an annual holiday as bereavement leave.
37A: Employer must allow employee taking annual holidays to take
family
1: This section applies to an employee who is taking annual holidays under this subpart and who then becomes entitled to take family section 72C
2: The employer must allow the employee to take any period related to the effects on the employee of family family Section 37A inserted 1 April 2019 section 26 Domestic Violence—Victims' Protection Act 2018 Section 37A heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 37A(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 37A(2) amended 1 July 2019 section 259(1) Family Violence Act 2018
38: Sickness, injury,
bereavement, or family
1: This section applies if—
a: an employee has been allowed to take annual holidays under this subpart; and
b: before taking those holidays, the employee—
i: becomes sick or injured; or
ii: has a spouse or partner
iii: suffers a bereavement as described in section 69(2) ; or
iv: becomes entitled to take family section 72C
2: The employer must allow the employee to take—
a: any period of sickness or injury that the employee would otherwise take as an annual holiday as sick leave:
b: any period related to the bereavement that the employee would otherwise take as an annual holiday as bereavement leave:
c: any period related to the effects on the employee of family family Section 38 heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 38 heading amended 1 April 2019 section 27(1) Domestic Violence—Victims' Protection Act 2018 Section 38(1)(b)(ii) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 38(1)(b)(iii) amended 1 April 2019 section 27(2) Domestic Violence—Victims' Protection Act 2018 Section 38(1)(b)(iv) inserted 1 April 2019 section 27(3) Domestic Violence—Victims' Protection Act 2018 Section 38(1)(b)(iv) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 38(2)(c) inserted 1 April 2019 section 27(4) Domestic Violence—Victims' Protection Act 2018 Section 38(2)(c) amended 1 July 2019 section 259(1) Family Violence Act 2018
39: Employer may allow employee to take annual holidays if sick leave
, bereavement leave, or family
1: This section applies if—
a: an employee has exhausted his or her entitlement to sick leave under subpart 4
i: becomes or remains sick or injured; or
ii: has a spouse or partner
b: an employee requires more leave for a bereavement than he or she is entitled to under subpart 4 ; or
c: an employee requires more leave to assist the employee to deal with the effects on the employee of being a person affected by family subpart 5
2: The employer—
a: must not require the employee to take any leave in the circumstances set out in subsection (1) as annual holidays; but
b: may agree, if requested by the employee, to the leave being taken as annual holidays to which the employee is entitled. Section 39 heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 39 heading amended 1 April 2019 section 28(1) Domestic Violence—Victims' Protection Act 2018 Section 39(1)(a)(ii) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 39(1)(b) amended 1 April 2019 section 28(2) Domestic Violence—Victims' Protection Act 2018 Section 39(1)(c) inserted 1 April 2019 section 28(3) Domestic Violence—Victims' Protection Act 2018 Section 39(1)(c) amended 1 July 2019 section 259(1) Family Violence Act 2018
40: Relationship between annual holidays and public holidays
1: A public holiday that occurs during an employee’s annual holidays must be treated as a public holiday and not as part of the employee’s annual holidays.
2: Subsection (3) applies if—
a: the employment of an employee comes to an end; and
b: the employee is entitled to annual holidays; and
c: the employee has not taken the annual holidays or has taken only some of them.
3: The employee is entitled to be paid for a public holiday if the holiday would have—
a: otherwise been a working day for the employee; and
b: occurred during the employee’s annual holidays had the employee taken his or her remaining annual holidays entitlement immediately after the date on which the employee’s employment came to an end.
2: Entitlement to 4 weeks’ annual holidays from 1 April 2007
Subpart 2 repealed 1 April 2011 section 17 Holidays Amendment Act 2010
41: Purpose of this subpart
Section 41 repealed 1 April 2011 section 17 Holidays Amendment Act 2010
42: Increase in minimum annual holiday entitlement
Section 42 repealed 1 April 2011 section 17 Holidays Amendment Act 2010
3: Public holidays
43: Purpose of this subpart
The purpose of this subpart is—
a: to provide employees with an entitlement to 12 public holidays
b: to provide for the transfer of public holidays (whether in whole or in part):
c: to specify the entitlements of employees in relation to public holidays. Section 43(a) amended 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 43(b) substituted 1 April 2011 section 11 Holidays Amendment Act 2010 Section 43(c) added 30 September 2008 section 6 Holidays (Transfer of Public Holidays) Amendment Act 2008
44: Days that are public holidays
1: The following days are public holidays:
a: Christmas Day:
b: Boxing Day:
c: New Year’s Day:
d: 2 January:
e: Waitangi Day:
f: Good Friday:
g: Easter Monday:
h: ANZAC Day:
i: the birthday of the reigning Sovereign (observed on the first Monday in June):
ia: the day on which a public holiday is observed to acknowledge Matariki (Te Rā Aro ki a Matariki/Matariki Observance Day) ( see Schedule 1
j: Labour Day (being the fourth Monday in October):
k: the day of the anniversary of a province or the day locally observed as that day.
2:
3:
4: If 2 or more of the public holidays specified in subsection (1) fall on the same day, the public holidays must, for the purposes of this subpart, be treated as 1 day. 1981 No 15 s 7A(2) Section 44(1)(ia) inserted 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 44(2) repealed 30 September 2008 section 7 Holidays (Transfer of Public Holidays) Amendment Act 2008 Section 44(3) repealed 30 September 2008 section 7 Holidays (Transfer of Public Holidays) Amendment Act 2008
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: one or both of those days are specified in section 44(1)
2: If the criterion in subsection (3) is met, the employee and his or her employer may agree in writing (whether in an employment agreement or otherwise)—
a: that part of one or both days specified in section 44(1)
b: that,—
i: if the agreement relates to only 1 day specified in section 44(1)
A: is to start or finish during the day specified in section 44(1)
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)
A: is to start or finish during the days specified in section 44(1)
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 56
4: Where an agreement to transfer part of a public holiday applies, the employee’s entitlements under sections 50 56
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. Section 44A substituted 1 April 2011 section 12 Holidays Amendment Act 2010
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) transfer
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)
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
3: Where an agreement to transfer a public holiday applies, the employee’s entitlements under sections 50 56
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)
b: must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year. Section 44B inserted 1 April 2011 section 12 Holidays Amendment Act 2010
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) may apply to—
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 44B Section 44C inserted 1 April 2011 section 12 Holidays Amendment Act 2010
45: Transfer of public holidays over Christmas and New Year
1: For the purposes of this subpart, if any of the public holidays listed in section 44(1)(a) to (d)
a: falls on a Saturday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
b: falls on a Saturday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Monday:
c: falls on a Sunday and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
d: falls on a Sunday and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Tuesday.
2: To avoid doubt, this section does not entitle an employee to more than 4 public holidays for the days listed in section 44(1)(a) to (d)
45A: Transfer of Waitangi Day and ANZAC Day public holidays
1: For the purposes of this subpart, if Waitangi Day or ANZAC Day—
a: falls on a Saturday or a Sunday, and the day would otherwise be a working day for the employee, the public holiday must be treated as falling on that day:
b: falls on a Saturday or a Sunday, and the day would not otherwise be a working day for the employee, the public holiday must be treated as falling on the following Monday.
2: To avoid doubt, this section does not entitle an employee to more than 1 public holiday for Waitangi Day or more than 1 public holiday for ANZAC Day. Section 45A inserted 1 January 2014 section 5 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Entitlement to public holidays
46: Entitlement to public holidays
1: An employee is entitled to public holidays, and payment for those holidays, in accordance with this subpart.
2: Public holidays are in addition to annual holidays that an employee is entitled to under this Act or otherwise. 1981 No 15 s 7A(1)
47: When employee required to work on public holiday
An employer may require an employee to work on a public holiday if—
a: the public holiday falls on a day on which, but for it being a public holiday, would otherwise be a working day for the employee; and
b: the employee is required to work on the public holiday under the employee’s employment agreement.
48: Compliance with section 46
1: If a public holiday falls on a day that would not otherwise be a working day for an employee, section 46
a: the employee does not work on the day; or
b: the employee works on any part of the day and the employer pays the employee in accordance with section 50
2: If a public holiday falls on a day that would otherwise be a working day for an employee, section 46
a: the employee—
i: does not work on that day; and
ii: the employer pays the employee in accordance with section 49
b: the employee—
i: works (in accordance with his or her employment agreement) on any part of that day; and
ii: the employer pays the employee in accordance with section 50
iii: the employer provides the employee with an alternative holiday under section 56 Payment for public holidays
49: Payment if employee does not work on public holiday
If an employee does not work on a public holiday and the day would otherwise be a working day for the employee, the employer must pay the employee not less than the employee’s relevant daily pay or average daily pay Section 49 amended 1 April 2011 section 17 Holidays Amendment Act 2010
50: Employer must pay employee at least time and a half for working on public holiday
1: If an employee works (in accordance with his or her employment agreement) on any part of a public holiday, the employer must pay the employee the greater of—
a: the portion of the employee’s relevant daily pay or average daily pay
b: the portion of the employee’s relevant daily pay that relates to the time actually worked on the day.
2: In subsection (1)(a), penal rates
a: means an identifiable additional amount that is payable to compensate the employee for working on a particular day of the week or a public holiday; but
b: does not include, for example, any additional payment for a sixth or seventh day of work.
3: This section is subject to section 51 Section 50 substituted 22 October 2004 section 5 Holidays Amendment Act 2004 Section 50(1)(a) amended 1 April 2011 section 17 Holidays Amendment Act 2010
51: Transitional provision for employers who already pay for work on public holidays in employee’s regular pay
1: This section applies to—
a: an existing collective agreement until the later of—
i: 1 April 2007; or
ii: the date on which a collective agreement that replaces the existing collective agreement comes into force:
b: an existing individual employment agreement, until 1 April 2007.
2: An employer may pay an employee for work on a public holiday as part of the employee’s regular pay if the requirements of subsection (3) are met.
3: The requirements are that—
a: an amount for working on public holidays has been previously genuinely negotiated into the employee’s regular pay; and
b: the amount can be demonstrated to meet the objectives of section 50
c: the employer can provide evidence to support the requirements in paragraphs (a) and (b). Section 51(1) substituted 22 October 2004 section 6 Holidays Amendment Act 2004
52: New employment agreements must include provision
that complies with section 50
1: This section applies to an employment agreement that is entered into after 1 April 2004.
2: The employment agreement must include a provision that confirms the right of the employee to be paid in accordance with section 50
3: To avoid doubt, the employment agreement may not state that the relevant daily pay or average daily pay section 50 Section 52 heading amended 22 October 2004 section 7(1) Holidays Amendment Act 2004 Section 52(2) amended 22 October 2004 section 7(2) Holidays Amendment Act 2004 Section 52(3) amended 1 April 2011 section 17 Holidays Amendment Act 2010
53: Existing employment agreements must include provision
that complies with section 50
1: This section applies to an existing employment agreement.
2: The employment agreement must, from the date referred to in subsection (3), be amended to include a provision that confirms the right of the employee to be paid in accordance with section 50
3: The date is,—
a: for an existing collective agreement to which section 51
i: 1 April 2007; or
ii: the date on which a collective agreement that replaces the existing collective agreement comes into force:
b: for an existing individual employment agreement to which section 51
c: for all other existing employment agreements, the earlier of—
i: the date on which the existing employment agreement is next amended; or
ii: 1 April 2005.
4: To avoid doubt, an existing employment agreement may not state that the relevant daily pay or average daily pay section 50 Section 53 heading amended 22 October 2004 section 8(1) Holidays Amendment Act 2004 Section 53(2) amended 22 October 2004 section 8(2) Holidays Amendment Act 2004 Section 53(3) substituted 22 October 2004 section 8(3) Holidays Amendment Act 2004 Section 53(4) amended 1 April 2011 section 17 Holidays Amendment Act 2010
54: Questions about whether sections 50 to 53 complied with
1: This section applies if an employer and employee cannot agree on the amount of pay that should be paid to the employee for work done on a public holiday.
2: A Labour Inspector may determine the amount of pay for the employer and employee.
3: In making the determination the Labour Inspector must apply the provisions of this subpart to the circumstances as determined by the Labour Inspector.
4: To avoid doubt, a dispute about whether an employer is complying, or has complied with, section 50 section 51 section 52 section 53 Employment Relations Act 2000
55: When payment for public holiday must be made
An employer must pay an employee for a public holiday in the pay that relates to the pay period in which the holiday occurs. Alternative holiday
56: Alternative holiday must be provided if employee works on public holiday
1: An employee is entitled to another day’s holiday (an alternative holiday
a: the public holiday falls on a day that would otherwise be a working day for an employee; and
b: the employee works (in accordance with his or her employment agreement) on any part of that day.
2: If subsection (1) applies, an employer must—
a: provide the employee with an alternative holiday; and
b: pay the employee for working on the public holiday in accordance with section 50
3: The entitlement to an alternative holiday remains in force until—
a: the employee has taken the holiday; or
b: the employee has been paid for the holiday in accordance with section 60(2) section 61
4: An employee is not entitled to an alternative holiday under this section if the employee works for the employer only on public holidays.
57: Requirements of alternative holiday
1: An alternative holiday provided under section 56
a: be taken by the employee on a day that is agreed between the employer and employee; and
b: be a day that would otherwise be a working day for the employee; and
c: be a whole working day off work for the employee, regardless of the amount of time the employee actually worked on the public holiday ; and
d: not be taken on a public holiday.
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) applies, the employer must give the employee at least 14 days' notice of the requirement to take the alternative holiday. Section 57(1)(c) amended 1 April 2011 section 13(1) Holidays Amendment Act 2010 Section 57(1)(d) added 1 April 2011 section 13(1) Holidays Amendment Act 2010 Section 57(2) substituted 1 April 2011 section 13(2) Holidays Amendment Act 2010 Section 57(3) substituted 1 April 2011 section 13(2) Holidays Amendment Act 2010
58: When employee may be required to take alternative holiday
Section 58 repealed 1 April 2011 section 17 Holidays Amendment Act 2010
59: Entitlement to alternative holiday if employee on call on public holiday
1: This section—
a: applies to an employee who is on call only if the public holiday would otherwise be a working day for the employee; but
b: does not apply to an employee who is on call if the employee works, or is on call, for the employer only on public holidays.
2: If an employee is on call on a public holiday and is called by the employer, or a representative of the employer, to work on that day, the employee is entitled to an alternative holiday in accordance with section 56
3: If an employee is on call and is not called in to work, the employee is also entitled to an alternative holiday if the nature of the restriction imposed by the on call condition on the employee’s freedom of action is such that, for all practical purposes, the employee has not had a whole holiday.
4: This section applies in addition to section 50
60: Payment for alternative holiday
1: An employer must pay an employee not less than the employee’s relevant daily pay or average daily pay
2: Payment for an alternative holiday must be made—
a: in the pay that relates to the pay period in which the alternative holiday is taken; or
b: if the employee has not taken the alternative holiday before the date on which his or her employment ends,—
i: at the rate of the employee’s relevant daily pay or average daily pay
ii: in the pay that relates to the employee’s final period of employment. Section 60(1) amended 1 April 2011 section 17 Holidays Amendment Act 2010 Section 60(2)(b)(i) amended 1 April 2011 section 17 Holidays Amendment Act 2010
61: Alternative holiday may be exchanged for payment
1: An employee may request the employer to exchange the employee’s entitlement to an alternative holiday for a payment.
2: A request under subsection (1)—
a: may be made only if 12 months have passed since the employee’s entitlement to the alternative holiday arose; and
b: may be made whether or not the employee has been required to take the alternative holiday under section 57(2)
3: If the employer agrees to the employee’s request, the employer must pay the employee the amount agreed between the employer and the employee in exchange for the alternative holiday.
4: The employer must make the payment for the alternative holiday as soon as practicable after the employer has agreed under subsection (3). Section 61(2)(b) amended 1 April 2011 section 17 Holidays Amendment Act 2010 Relationship between public holidays and other entitlements Heading inserted 22 October 2004 section 9 Holidays Amendment Act 2004
61A: Sickness, injury,
bereavement, or family
1: This section applies to an employee who is required, or has agreed, to work on a public holiday but who does not work on the day because—
a: the employee—
i: becomes or remains sick or injured; or
ii: has a spouse or partner
b: the employee suffers or has suffered a bereavement as described in section 69(2)
c: the employee becomes entitled to take family section 72C
2: If this section applies,—
a: the public holiday must continue to be treated as a public holiday and not as sick leave , bereavement leave, or family
b: to avoid doubt, the employee—
i: must be paid for the day in accordance with section 49 section 50(1)(a)
ii: is not entitled to an alternative holiday under section 56 Section 61A heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 61A heading amended 1 April 2019 section 29(1) Domestic Violence—Victims' Protection Act 2018 Section 61A inserted 22 October 2004 section 9 Holidays Amendment Act 2004 Section 61A(1)(a)(ii) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 61A(1)(b) replaced 1 April 2019 section 29(2) Domestic Violence—Victims' Protection Act 2018 Section 61A(1)(c) inserted 1 April 2019 section 29(2) Domestic Violence—Victims' Protection Act 2018 Section 61A(1)(c) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 61A(2)(a) amended 1 April 2019 section 29(3) Domestic Violence—Victims' Protection Act 2018 Section 61A(2)(a) amended 1 July 2019 section 259(1) Family Violence Act 2018
4: Sick leave and bereavement leave
62: Purpose of this subpart
The purpose of this subpart is to provide all employees with a minimum entitlement to paid leave in the event of their sickness or injury, or of the sickness, injury, or death of certain other persons. Entitlement to sick leave and bereavement leave
63: Entitlement to sick leave and bereavement leave
1: An employee is entitled to sick leave and bereavement leave in accordance with this subpart—
a: after the employee has completed 6 months’ current continuous employment with the employer; or
b: if, in the case of an employee to whom subsection (1)(a) does not apply, the employee has, over a period of 6 months, worked for the employer for—
i: at least an average of 10 hours a week during that period; and
ii: no less than 1 hour in every week during that period or no less than 40 hours in every month during that period.
2: Sick leave and bereavement leave must be provided—
a: to an employee to whom subsection (1)(a) applies, for—
i: the 12-month period of continuous employment beginning at the end of the 6-month period specified in that subsection; and
ii: each subsequent 12 months of current continuous employment:
b: to an employee to whom subsection (1)(b) applies, for—
i: the 12-month period of employment beginning at the end of the 6-month period specified in that subsection; and
ii: each subsequent 12-month period of employment as long as the circumstances referred to in subparagraphs (i) and (ii) of that subsection continue to apply.
3: However, an employer and employee may agree that—
a: the employee may take sick leave or bereavement leave in advance; and
b: in the case of sick leave taken in advance, the amount of leave taken is to be deducted from the employee’s entitlement under this section. 1981 No 15 s 30A(1)
64: Employee must notify employer of intention to take leave
An employee who intends to take sick leave or bereavement leave must notify the employer of that intention—
a: as early as possible before the employee is due to start work on the day that is intended to be taken as sick leave or bereavement leave; or
b: if that is not practicable, as early as possible after that time. 1981 No 15 s 30A(5) Sick leave
65: Sick leave
1: An employee may take sick leave if—
a: the employee is sick or injured; or
b: the employee’s spouse or partner
c: a person who depends on the employee for care is sick or injured.
2: An employee is entitled to 10 section 63(2) Section 65(1)(b) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 65(2) amended 24 July 2021 section 4 Holidays (Increasing Sick Leave) Amendment Act 2021
66: Sick leave may be carried over
1: An employee may carry over, to any subsequent 12-month period of employment, any sick leave that has not been taken by the end of the period to which the leave relates.
2: For the purposes of subsection (1), an employee may carry over up to 10
3: To avoid doubt, subsection (2) does not prevent an employer from allowing an employee to carry over any enhanced or additional sick leave entitlement. 1981 No 15 s 30A(3) Section 66(2) amended 24 July 2021 section 5 Holidays (Increasing Sick Leave) Amendment Act 2021
67: Sick leave need not be paid out
An employee is not entitled to be paid for any sick leave that has not been taken before the date on which his or her employment ends.
68: Proof of sickness or injury
1: An employer may require an employee to produce proof of sickness or injury for sick leave taken under section 65
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: Subsection (1) does not prevent an employer and employee from agreeing that the employee will produce proof of sickness or injury for sick leave provided to the employee in addition to the entitlement set out in section 65
3: For the purposes of this section, proof of sickness or injury health practitioner
a: the employee is not fit to attend work because of sickness or injury; or
b: the employee cannot attend work—
i: because the employee’s spouse or partner
ii: because a person who depends on the employee for care is sick or injured.
4: To avoid doubt,—
a: this section does not prevent an employer who is otherwise legally authorised to so require, from requiring an employee to establish that there are no relevant health and safety reasons or hygiene reasons that would prevent the employee from working:
b: subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.
5: In this section, health practitioner section 5 Section 68(1A) substituted 1 April 2011 section 14(1) Holidays Amendment Act 2010 Section 68(3) amended 31 January 2018 section 4(1) Holidays Amendment Act (No 2) 2016 Section 68(3) amended 1 April 2011 section 14(2) Holidays Amendment Act 2010 Section 68(3)(b)(i) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 68(4) substituted 22 October 2004 section 10(2) Holidays Amendment Act 2004 Section 68(5) replaced 31 January 2018 section 4(2) Holidays Amendment Act (No 2) 2016 Bereavement leave
69: Bereavement leave
1: An employee may take bereavement leave in accordance with sections 63 70
2: An employee suffers a bereavement—
a: on the death of the employee’s—
i: spouse or partner
ii: parent:
iii: child:
iv: brother or sister:
v: grandparent:
vi: grandchild:
vii: spouse’s or partner’s
b: on the death of any other person if the employer accepts, having regard to relevant factors such as those set out in subsection (3), that the employee has suffered a bereavement as a result of the death; or
c: on the end of an employee’s pregnancy by way of a miscarriage or still-birth; or
d: on the end of another person’s pregnancy, by way of a miscarriage or still-birth, if the employee—
i: is the person’s spouse or partner; or
ii: is the person’s former spouse or partner and would have been a biological parent of a child born as a result of the pregnancy; or
iii: had undertaken to be the primary carer (as described in section 7(1)(c)
iv: is the spouse or partner of a person who had undertaken to be the primary carer of a child born as a result of the pregnancy.
3: For the purposes of subsection (2)(b), relevant factors include—
a: the closeness of the association between the employee and the deceased person:
b: whether the employee has to take significant responsibility for all or any of the arrangements for the ceremonies relating to the death:
c: any cultural responsibilities of the employee in relation to the death.
4: In this section,— miscarriage Contraception, Sterilisation, and Abortion Act 1977 still-birth Births, Deaths, Marriages, and Relationships Registration Act 2021 Contraception, Sterilisation, and Abortion Act 1977 1981 No 15 s 30A(7) Section 69(2)(a)(i) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 69(2)(a)(vii) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 69(2)(b) amended 31 March 2021 section 4(1) Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 Section 69(2)(c) inserted 31 March 2021 section 4(2) Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 Section 69(2)(d) inserted 31 March 2021 section 4(2) Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 Section 69(4) inserted 31 March 2021 section 4(3) Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 Section 69(4) still-birth amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021
70: Duration of bereavement leave
1: An employer must allow an employee to take—
a: 3 days’ bereavement leave for each type of bereavement described in section 69(2)(a), (c), and (d)
b: 1 day’s bereavement leave for a bereavement described in section 69(2)(b)
2: If an employee suffers more than 1 bereavement at the same time, he or she may take the amount of bereavement leave specified in subsection (1) in respect of each bereavement. Section 70(1)(a) replaced 31 March 2021 section 5 Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021 Payment for sick leave and bereavement leave
71: Payment for sick leave and bereavement leave
1: An employer must pay an employee an amount that is equivalent to the employee’s relevant daily pay or average daily pay
2: Despite subsection (1), an employer is not required to pay an employee for any time for which the employee is paid weekly compensation under the Accident Compensation Act 2001
3: An employer must not require an employee to take as sick leave any time for which the employee is being paid—
a: first week compensation by the employer under section 97 Accident Compensation Act 2001
b: weekly compensation for a work-related injury within the meaning of that Act or former Act.
4: However, if an employer pays the difference between the employee’s first week compensation or weekly compensation and ordinary weekly pay, the employer may agree with the employee that he or she may deduct from the employee’s current sick leave entitlement 1 day for every 5 whole days that the employer makes that payment. 1981 No 15 s 30A(4), (6) Section 71(1) amended 1 April 2011 section 17 Holidays Amendment Act 2010 Section 71(2) amended 1 April 2019 section 30 Domestic Violence—Victims' Protection Act 2018 Section 71(3)(a) amended 1 April 2019 section 30 Domestic Violence—Victims' Protection Act 2018
72: When payment for sick leave or bereavement leave must be made
1: An employer must pay an employee for sick leave or bereavement leave in the pay that relates to the pay period in which the leave is taken.
2: However, if an employee is required to provide proof of sickness or injury under section 68 , without reasonable excuse, Section 72(2) amended 22 October 2004 section 11 Holidays Amendment Act 2004
5: Family Subpart 5 inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Subpart 5 heading amended 1 July 2019 section 259(1) Family Violence Act 2018
72A: Purpose of this subpart
The purpose of this subpart is to provide employees who are people affected by family family Section 72A inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72A amended 1 July 2019 section 259(1) Family Violence Act 2018
72B: Meaning of person affected by
family
1: In this subpart, a person affected by family
a: a person against whom any other person is inflicting, or has inflicted, family
b: a person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, family
2: In this section, child section 8 Section 72B inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72B heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72B(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72B(1)(a) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72B(1)(b) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72B(2) amended 1 July 2019 section 259(1) Family Violence Act 2018 Entitlement to family Heading inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Heading amended 1 July 2019 section 259(1) Family Violence Act 2018
72C: Entitlement to
family An employee may take family
a: if the employee is a person affected by family family family
b: in accordance with sections 72D 72H Section 72C inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72C heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72C amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72C(a) amended 1 July 2019 section 259(1) Family Violence Act 2018
72D: When entitlement to
family
1: An employee is entitled to family
a: after the employee has completed 6 months’ current continuous employment with the employer; or
b: if, in the case of an employee to whom subsection (1)(a) does not apply, the employee has, over a period of 6 months, worked for the employer for—
i: at least an average of 10 hours a week during that period; and
ii: no less than 1 hour in every week during that period or no less than 40 hours in every month during that period.
2: Family
a: to an employee to whom subsection (1)(a) applies, for—
i: the 12-month period of continuous employment beginning at the end of the 6-month period specified in that subsection; and
ii: each subsequent 12 months of current continuous employment:
b: to an employee to whom subsection (1)(b) applies, for—
i: the 12-month period of employment beginning at the end of the 6-month period specified in that subsection; and
ii: each subsequent 12-month period of employment as long as the circumstances referred to in subparagraphs (i) and (ii) of that subsection continue to apply.
3: However, an employer and employee may agree that—
a: the employee may take family
b: in the case of family Section 72D inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72D heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72D(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72D(2) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72D(3)(a) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72D(3)(b) amended 1 July 2019 section 259(1) Family Violence Act 2018
72E: Employee must notify employer of intention to take
family An employee who intends to take family
a: as early as possible before the employee is due to start work on the day that is intended to be taken as family
b: if that is not practicable, as early as possible after that time. Section 72E inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72E heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72E amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72E(a) amended 1 July 2019 section 259(1) Family Violence Act 2018
72F: Family An employee is not entitled to be paid for any family Section 72F inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72F heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72F amended 1 July 2019 section 259(1) Family Violence Act 2018
72G: Proof of
family An employer may require proof that an employee is a person affected by family family section 72C Section 72G inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72G heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72G amended 1 July 2019 section 259(1) Family Violence Act 2018
72H: Duration of
family An employee—
a: may take up to 10 days' family section 72D(2)
b: cannot carry forward any family Section 72H inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72H heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72H(a) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72H(b) amended 1 July 2019 section 259(1) Family Violence Act 2018 Payment for family Heading inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Heading amended 1 July 2019 section 259(1) Family Violence Act 2018
72I: Payment for
family
1: An employer must pay an employee an amount that is equivalent to the employee’s relevant daily pay or average daily pay for each day of family
2: Despite subsection (1), an employer is not required to pay an employee for any time for which the employee is paid weekly compensation under the Accident Compensation Act 2001
3: An employer must not require an employee to take as family
a: first week compensation by the employer under section 97
b: weekly compensation for a work-related injury within the meaning of that Act or former Act.
4: However, if an employer pays the difference between the employee’s first week compensation or weekly compensation and ordinary weekly pay, the employer may agree with the employee that the employer may deduct from the employee’s family Section 72I inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72I heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72I(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72I(3) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72I(4) amended 1 July 2019 section 259(1) Family Violence Act 2018
72J: When payment for
family
1: An employer must pay an employee for family
2: However, if an employee is required to provide proof under section 72G family Section 72J inserted 1 April 2019 section 31 Domestic Violence—Victims' Protection Act 2018 Section 72J heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72J(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 72J(2) amended 1 July 2019 section 259(1) Family Violence Act 2018
3: Enforcement and other matters
1: Enforcement
73: Employer and employee obligations under Act
1: When dealing with each other under this Act, an employer and employee must deal with each other in good faith.
2: At the time an employee enters into an employment agreement with an employer, the employer must inform the employee—
a: about his or her entitlements under this Act; and
b: that the employee can obtain further information about his or her entitlements under this Act from—
i: the union of which the employee is a member (if applicable):
ii: the department.
74: Who can enforce Act
1: The provisions of this Act may be enforced in accordance with this Act by—
a: an employee:
b: an authorised representative:
c: a representative of a union of which the employee is a member:
d: an employer:
e: a Labour Inspector.
2: An employee’s entitlement to annual holidays, public holidays, sick leave, bereavement leave, or family Section 74(2) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 74(2) amended 1 April 2019 section 32 Domestic Violence—Victims' Protection Act 2018
75: Penalty for non-compliance
1: An employer who fails to comply with any of the provisions listed in subsection (2) , and every person who is involved in the failure to comply,
a: if the employer or the person who is involved in the failure to comply $10,000
b: if the employer or the person who is involved in the failure to comply $20,000
2: The provisions are—
a: section 16 sections 21 to 28
b: section 40(3)
ba: sections 28A 28B
c: section 46 sections 49 to 56 section 60 section 61(3)
d: section 63 section 65 sections 69 to 72
da: sections 72C 72H to 72J family
e: section 81
f: section 82
3: For the purposes of subsection (1), a person is involved in a failure to comply section 142W 1981 No 15 s 34(1)(a) Section 75(1) amended 1 April 2016 section 5(1) Holidays Amendment Act 2016 Section 75(1)(a) amended 13 January 2020 section 11(2) Regulatory Systems (Workforce) Amendment Act 2019 Section 75(1)(a) amended 1 April 2011 section 15(1) Holidays Amendment Act 2010 Section 75(1)(b) amended 13 January 2020 section 11(2) Regulatory Systems (Workforce) Amendment Act 2019 Section 75(1)(b) amended 1 April 2011 section 15(2) Holidays Amendment Act 2010 Section 75(2)(ba) inserted 1 April 2011 section 15(3) Holidays Amendment Act 2010 Section 75(2)(da) inserted 1 April 2019 section 33 Domestic Violence—Victims' Protection Act 2018 Section 75(2)(da) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 75(2)(e) replaced 1 April 2016 section 5(2) Holidays Amendment Act 2016 Section 75(2)(f) inserted 1 April 2016 section 5(2) Holidays Amendment Act 2016 Section 75(3) inserted 1 April 2016 section 5(3) Holidays Amendment Act 2016
76: Proceedings by Labour Inspector
or employee concerned
1: A Labour Inspector and the employee concerned are the only persons section 75
1A: However, only a Labour Inspector may bring an action in the Authority against a person involved in a failure to comply in order to recover a penalty under section 75
2: A claim for 2 or more penalties against the same employer may be joined in the same action.
3: A claim for a penalty may be heard in conjunction with any proceedings for the recovery of holiday pay or leave pay.
4: After hearing an action for recovery of a penalty, the Authority may—
a: give judgment for the amount claimed; or
b: give judgment for an amount that is less than the amount claimed; or
c: dismiss the action.
5: An action for the recovery of a penalty must be commenced within 12 months after the earlier of when the cause of action became known, or should reasonably have become known, to the Labour Inspector or employee concerned
5A: Despite subsection (5), if a court refuses to make a pecuniary penalty order under section 142E
6: A penalty that is recovered must be paid,—
a: if, and to the extent, ordered by the Authority, to any person the Authority specifies; or
b: in any other case, into court and then into a Crown Bank Account Section 76 heading amended 1 April 2016 section 6(1) Holidays Amendment Act 2016 Section 76(1) amended 1 April 2016 section 6(2) Holidays Amendment Act 2016 Section 76(1A) inserted 1 April 2016 section 6(3) Holidays Amendment Act 2016 Section 76(5) amended 1 April 2016 section 6(4) Holidays Amendment Act 2016 Section 76(5A) inserted 1 April 2016 section 6(5) Holidays Amendment Act 2016 Section 76(6)(b) amended 25 January 2005 section 65R(3) Public Finance Act 1989
76A: Matters Authority to have regard to in determining amount of penalty
In determining an appropriate penalty under section 76
a: the purpose stated in section 3 section 3
b: the matters referred to in section 133A(b) to (g) Section 76A inserted 1 April 2016 section 7 Holidays Amendment Act 2016
76B: Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court as a debt due to the Crown any penalty ordered by the Authority or the court under section 76 Section 76B inserted 1 April 2016 section 7 Holidays Amendment Act 2016 section 261
77: Proceedings by Labour Inspector to recover arrears of pay
1: A Labour Inspector may take proceedings on behalf of an employee to recover unpaid holiday pay or leave pay that the employee is entitled to under this Act.
2: If a Labour Inspector takes proceedings under subsection (1), the Labour Inspector must not issue a demand notice under section 224
3: Section 131
4: An action initiated or taken under this Act by a Labour Inspector may be completed by another Labour Inspector. 1981 No 15 s 35
77A: Proceedings by Labour Inspector or employee to recover arrears of pay from person involved in failure to comply
1: A Labour Inspector or an employee may recover from a person who is not the employee’s employer any unpaid holiday pay or leave pay that the employee is entitled to if—
a: the employee is entitled to unpaid holiday pay or leave pay under this Act; and
b: the holiday pay or leave pay is unpaid due to non-compliance with this Act; and
c: the person from whom the pay is sought to be recovered is a person involved in the non-compliance.
2: However, unpaid holiday pay or leave pay may be recovered under subsection (1) only,—
a: in the case of recovery by an employee, with the prior leave of the Authority or court; and
b: to the extent that the employee’s employer is unable to pay the holiday pay or leave pay.
3: For the purposes of subsection (1), a person is involved in the non-compliance section 142W Section 77A inserted 1 April 2016 section 8 Holidays Amendment Act 2016
78: Powers of Labour Inspector
For the purposes of this Act, every Labour Inspector has, in addition to any powers conferred by this Act, all the powers that a Labour Inspector has under the Employment Relations Act 2000 1981 No 15 s 32
79: Determinations by Labour Inspector
Except to the extent that, in any proceedings before the Authority, the Authority makes its own determination on the matter, a determination made by a Labour Inspector under section 11(2) section 13(2) section 17(2) section 54(2) section 85(2)
80: Labour Inspector must consult employer and employee
Before making a determination under this Act, a Labour Inspector must—
a: discuss the matter with the employer and employee; and
b: give the employer and employee the opportunity to comment on what the Labour Inspector proposes to consider in making the determination. Holiday and leave record
81: Holiday and leave record
1:
2: An employer must at all times keep a holiday and leave record showing, in the case of each employee employed by the employer, the following information:
a: the name of the employee:
b: the date on which the employee’s employment commenced:
c: the number of hours worked each day in a pay period and the pay for those hours:
d: the employee’s current entitlement to annual holidays:
e: the date on which the employee last became entitled to annual holidays:
f: the employee’s current entitlement to sick leave:
g: the dates on which any annual holiday, sick leave, bereavement leave, or family
h: the amount of payment for any annual holiday, sick leave, bereavement leave, or family
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
i: the dates of, and payments for, any public holiday on which the employee worked:
j: the number of hours that the employee worked on any public holiday:
ja: the day or part of any public holiday specified in section 44(1) section 44A 44B
k: the date on which the employee became entitled to any alternative holiday:
l: the details of the dates of, and payments for, any public holiday or alternative holiday on which the employee did not work, but for which the employee had an entitlement to holiday pay:
m: the cash value of any board or lodgings, as agreed or determined under section 10
n: the details of any payment to which the employee is entitled under section 61(3)
o: the date of the termination of the employee’s employment (if applicable):
p: the amount paid to the employee as holiday pay upon the termination of the employee’s employment (if applicable):
q: any other particulars that may be prescribed.
3: The holiday and leave record must be kept—
a: in written form; or
b: in a form or in a manner that allows the information in the record to be easily accessed and converted into written form.
3A: If an employee’s number of hours worked each day in a pay period and the pay for those hours are agreed and the employee works those hours (the usual hours
a: the employee’s wages and time record kept under section 130
b: the employee’s employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
3B: In subsection (3A), the usual hours
3C: Despite subsection (3B), the employer must record any additional hours worked that need to be recorded to enable the employer to comply with the employer’s general obligation under section 4B(1)
4: Information entered in the holiday and leave record must be kept for not less than 6 years after the date on which the information is entered.
5: The holiday and leave record may be kept so as to form part of the wages and time record required to be kept under section 130 1981 No 15 s 31 Section 81(1) repealed 1 April 2016 section 9(1) Holidays Amendment Act 2016 Section 81(2) amended 1 April 2016 section 9(2) Holidays Amendment Act 2016 Section 81(2)(c) replaced 1 April 2016 section 9(3) Holidays Amendment Act 2016 Section 81(2)(g) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 81(2)(g) amended 1 April 2019 section 34 Domestic Violence—Victims' Protection Act 2018 Section 81(2)(h) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 81(2)(h) amended 1 April 2019 section 34 Domestic Violence—Victims' Protection Act 2018 Section 81(2)(ha) inserted 1 April 2011 section 16(1) Holidays Amendment Act 2010 Section 81(2)(hb) inserted 1 April 2011 section 16(1) Holidays Amendment Act 2010 Section 81(2)(ja) inserted 1 April 2011 section 16(2) Holidays Amendment Act 2010 Section 81(3A) inserted 1 April 2016 section 9(4) Holidays Amendment Act 2016 Section 81(3B) inserted 1 April 2016 section 9(4) Holidays Amendment Act 2016 Section 81(3C) inserted 1 April 2016 section 9(4) Holidays Amendment Act 2016
82: Requests for access to holiday and leave record
1: The following persons may request an employer to provide access to, or a copy of, or a certified extract from, information in the holiday and leave record relating to an employee:
a: the employee:
b: an authorised representative:
c: a representative of a union of which the employee is a member:
d: a Labour Inspector.
2: An employer who receives a request under subsection (1) must comply as soon as practicable with the request by—
a: allowing the employee, authorised representative, representative of the union, or Labour Inspector to view the record; or
b: providing a copy or certified extract of the information concerned.
83: Failure to keep or provide access to holiday and leave record
1: Evidence that an employer has failed to comply with section 81 section 82
a: to recover holiday pay or leave pay from an employer; or
b: to enforce an entitlement to annual holidays, public holidays, sick leave, bereavement leave, or family
2: To avoid doubt, for the purposes of subsection (1), an action before the Authority includes the determination of an objection to—
a: an improvement notice issued under section 223D
b: a demand notice served under section 224
3: If, after hearing the evidence, the Authority is satisfied that the employer failed to comply with section 81 section 82
4: If a finding under subsection (3) is made, then the Authority may accept as proved, in the absence of evidence to the contrary, statements made by the employee about—
a: holiday pay or leave pay actually paid to the employee:
b: annual holidays, public holidays, sick leave, bereavement leave, or family Section 83(1)(b) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 83(1)(b) amended 1 April 2019 section 35 Domestic Violence—Victims' Protection Act 2018 Section 83(2) substituted 1 April 2011 section 40 Employment Relations Amendment Act 2010 Section 83(4)(b) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 83(4)(b) amended 1 April 2019 section 35 Domestic Violence—Victims' Protection Act 2018
2: Other matters
84: Power to award interest on unpaid holiday pay or leave pay
1: Subsection (2) applies if—
a: the Authority gives judgment for an employee in an action to recover holiday pay or leave pay; or
b: the Authority makes a determination under section 226
2: The Authority may include, in the sum for which judgment is given or the determination is made, interest for the whole or any part of the period between the date when the cause of action arose and the date of payment in accordance with the judgment or determination.
3: Interest included in a judgment or determination must not exceed interest clause 11
4: Section 84(3) amended 1 January 2018 section 29 Interest on Money Claims Act 2016 Section 84(4) repealed 1 January 2018 section 29 Interest on Money Claims Act 2016
85: Presumption that employment continuous if employee dismissed and re-employed within 1 month
1: If an employer dismisses an employee and then re-employs the employee within 1 month after the dismissal, the employee’s employment must be treated as being continuous for the purpose of the employee’s entitlements under this Act.
2: Subsection (1) does not apply if a Labour Inspector makes a determination that the Labour Inspector is satisfied that—
a: the employer acted in good faith; and
b: the employer did not act for the purpose of evading his or her obligations under this Act. 1981 No 15 s 20
86: Holiday pay and leave pay treated as salary or wages
Holiday pay and leave pay payable by an employer to an employee is—
a: to be treated as salary or wages earned by the employee; and
b: without limiting paragraph (a), subject to deductions that the employer is required or entitled to make from salaries or wages for the purpose of income tax or any other purpose. 1981 No 15 s 22
87: Regulations
1: The Governor-General may, by Order in Council, make regulations for 1 or more of the following purposes:
a: prescribing forms for the purposes of this Act:
b: prescribing the procedure in relation to proceedings under this Act, including the procedure for objecting to a holiday pay demand notice:
c: prescribing the procedure for withdrawing a holiday pay demand notice:
d: providing for any other matters that are contemplated by or necessary for giving full effect to this Act and its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 87(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Transitional provisions relating to entitlements under Holidays Act 1981
88: Transitional provision relating to annual holidays
1: Any annual holidays to which an employee had, before the commencement of this section, become entitled under section 11 of the Holidays Act 1981
a: remain in force despite the repeal of the Holidays Act 1981
b: must be treated as annual holidays which the employee is entitled to take, or to be paid for, in accordance with subpart 1
2: The operation of this section does not affect the date on which the employee next becomes entitled to annual holidays.
89: Transitional provision relating to public holidays
Any holiday to which an employee had, before the commencement of this section, become entitled under section 7A of the Holidays Act 1981
a: remains in force despite the repeal of the Holidays Act 1981
b: must be treated as if it were an alternative holiday which the employee is entitled to take, or to be paid for, in accordance with subpart 3
90: Transitional provision relating to special leave
1: Any special leave to which an employee had, before the commencement of this section, become entitled under section 30A of the Holidays Act 1981
a: remains in force despite the repeal of the Holidays Act 1981
b: must be treated as if it were sick leave which the employee is entitled to take in accordance with subpart 4
2: The operation of this section does not affect the date on which the employee next becomes entitled to sick leave.
91: Repeals and consequential amendments
1: The enactments specified in Schedule 2
2: The enactments specified in Schedule 3