Holidays Act 2003
Part 3 Enforcement and other matters

This is the full text of the Act and includes changes made by the Holidays Amendment Act 2004.

Part 3 Enforcement and other matters

Subpart 1 Enforcement

 Section 73 - Employer and employee obligations under Act

 Section 74 - Who can enforce Act

 Section 75 - Penalty for non-compliance

 Section 76 - Proceedings by Labour Inspector for penalty

 Section 77 - Proceedings by Labour Inspector to recover arrears of pay

 Section 78 - Powers of Labour Inspector

 Section 79 - Determinations by Labour Inspector

 Section 80 - Labour Inspector must consult employer and employee

Holiday and leave record

 Section 81 - Holiday and leave record

 Section 82 - Requests for access to holiday and leave record

 Section 83 - Failure to keep or provide access to holiday and leave record

Subpart 2 Other matters

 Section 84 - Power to award interest on unpaid holiday pay or leave pay

 Section 85 - Presumption that employment continuous if employee dismissed and re-employed within 1 month

 Section 86 - Holiday pay and leave pay treated as salary or wages

 Section 87 - Regulations

Transitional provisions relating to entitlements under Holidays Act 1981

 Section 88 - Transitional provision relating to annual holidays

 Section 89 - Transitional provision relating to public holidays

 Section 90 - Transitional provision relating to special leave

 Section 91 - Repeals and consequential amendments

Section 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.

Section 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, or bereavement leave that are in addition to entitlements under this Act may be enforced only by the persons listed in subsection (1)(a) to (c).

Section 75 Penalty for non-compliance

(1) An employer who fails to comply with any of the provisions listed in subsection (2) is liable,

(a) if the employer is an individual, to a penalty not exceeding $5,000:

(b) if the employer is a company or other body corporate, to a penalty not exceeding $10,000.

(2) The provisions are

(a) section 16 and sections 21 to 28 (which relate to an employee's entitlement to, and payment for, annual holidays):

(b) section 40(3) (which relates to an employee's entitlement to be paid for a public holiday that would have occurred during the employee's annual holidays):

(c) section 46 , sections 49 to 56 , section 60 , and section 61(3) (which relate to an employee's entitlement to, and payment for, public holidays and alternative holidays):

(d) section 63 , section 65 , and sections 69 to 72 (which relate to an employee's entitlement to, and payment for, sick leave and bereavement leave):

(e) section 83 (which relates to the failure to keep or provide access to a holiday and leave record).

Section 76 Proceedings by Labour Inspector for penalty

(1) A Labour Inspector is the only person who may bring an action in the Authority against an employer 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.

(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 the Crown Bank Account.

Section 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 of the Employment Relations Act 2000 in respect of the same pay.

(3) Section 131 of the Employment Relations Act 2000 applies, with all necessary modifications, to proceedings taken under subsection (1).

(4) An action initiated or taken under this Act by a Labour Inspector may be completed by another Labour Inspector.

Section 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.

Section 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) , or section 85(2) , is binding on the employer and employee.

Section 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.

Section 81 Holiday and leave record

(1) An employer must keep a holiday and leave record that complies with this section.

(2) The holiday and leave record must contain the following information for each employee:

(a) the name of the employee:

(b) the date on which the employee's employment commenced:

(c) the days on which the employee actually works, if the information is relevant to the calculation of entitlements or payment for entitlements under this Act:

(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, or bereavement leave has been taken:

(h) the amount of payment for any annual holiday, sick leave, or bereavement leave that has been taken:

(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:

(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) (which relates to payment in exchange for an alternative holiday):

(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.

(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 of the Employment Relations Act 2000.

Section 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.

Section 83 Failure to keep or provide access to holiday and leave record

(1) Evidence that an employer has failed to comply with section 81 or section 82 may be given in an action before the Authority

(a) to recover holiday pay or leave pay from an employer; or

(b) to enforce an entitlement to annual holidays, public holidays, sick leave, or bereavement leave against an employer.

(2) To avoid doubt, for the purposes of subsection (1), an action before the Authority includes the determination of an objection to a holiday pay demand notice under section 224 of the Employment Relations Act 2000.

(3) If, after hearing the evidence, the Authority is satisfied that the employer failed to comply with section 81 or section 82 and that the failure prevented the claimant from bringing an accurate claim, the Authority may make a finding to that effect.

(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, or bereavement leave actually taken by the employee.

Section 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 of the Employment Relations Act 2000 in favour of the employee.

(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 at the rate calculated under clause 11 of Schedule 2 of the Employment Relations Act 2000.

(4) This section does not authorise the giving of interest upon interest.

Section 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.

Section 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.

Section 87 Regulations

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.

Section 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 and that remain untaken on the commencement of this section

(a) remain in force despite the repeal of the Holidays Act 1981; and

(b) must be treated as annual holidays which the employee is entitled to take, or to be paid for, in accordance with subpart 1 of Part 2.

(2) The operation of this section does not affect the date on which the employee next becomes entitled to annual holidays.

Section 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, and that remains untaken on the commencement of this section

(a) remains in force despite the repeal of the Holidays Act 1981; and

(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 of Part 2.

Section 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 and that remains untaken on the commencement of this section

(a) remains in force despite the repeal of the Holidays Act 1981; and

(b) must be treated as if it were sick leave which the employee is entitled to take in accordance with subpart 4 of Part 2.

(2) The operation of this section does not affect the date on which the employee next becomes entitled to sick leave.

Section 91 Repeals and consequential amendments

(1) The enactments specified in Schedule 1 are repealed.

(2) The enactments specified in Schedule 2 are amended in the manner indicated in that schedule.

End of Part 3 Enforcement and other matters