Ace Payroll: Holidays Act Section 33 No contracting out




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Guide to Holidays Act 1981

Note: This is the text of the old Act that remains in force until 31st March 2004. From 1st April 2004 leave is governed by the Holidays Act 2003

Section 33 No contracting out

In Plain English

You cannot negotiate an employment contract that would result in an employee having lesser rights than are provided for under the Holidays Act.

Legislation

33.1 Except as otherwise expressly provided by this Act [or by section 42 or section 72.4 of the Parental Leave and Employment Protection Act 1987], no contract entered into before or after the commencement of this Act shall have any force or effect to deprive any worker of any right, power, privilege, or other benefit provided for by this Act.

33.2 Every person who after the commencement of this Act enters into or becomes a party to any contract purporting to have any such force or effect commits an offence against this Act.

Cf. 1944, No. 5, s. 9

In subs. (1) the words in square brackets were inserted by s. 75 (3) of the Parental Leave and Employment Protection Act 1987.

In subss. (1) and (2) the words 'or agreement' were omitted by s. 20 of the Holidays Amendment Act 1991.

Section 42 of the Parental Leave and Employment Protection Act 1987

Section 42 Employer's obligations in respect of remuneration and holiday pay

42.1 Subject to subsections (2) and (3) of this section, the employer of an employee who takes any form of parental leave in accordance with this Act shall not be obliged to pay that employee any remuneration for

(a) Any period of the employee's parental leave under this Act; or

(b) Any period during which the employee is entitled under this Act, following any period of parental leave, to preference in obtaining employment with the employer.

42.2 Where an employee becomes entitled to any annual holiday on pay during

(a) A period of parental leave under this Act; or

(b) A period of preference in obtaining employment; or

(c) The period of 12 months commencing with the date on which the employee returns to work after a period of parental leave under this Act or a period of preference in obtaining employment,

the employee shall, notwithstanding anything in section 16.4 of the Holidays Act 1981 be entitled to holiday pay for that holiday only at the rate of the employee's average weekly earnings (as that term is defined in section 2 of the Holidays Act 1981 ) during the year in respect of which the employee has become entitled to the holiday.

42.3 Where an employee is absent on parental leave at any time during the fortnight ending on the day on which any of the whole holidays referred to in section 24.1 of the Holidays Act 1981 occurs, the employee shall, notwithstanding anything in section 25 or section 30 of that Act, be entitled to holiday pay for that holiday at an amount equal to one-tenth of the employee's wages for an ordinary working day multiplied by the figure obtained by adding together

(a) The number of ordinary working days during the fortnight actually worked by the employee:

(b) The number of ordinary working days during the fortnight on which the employee was absent from employment due to any reason other than the taking of parental leave or being absent during a period of preference in obtaining employment under this Act.

Cf. 1980, No. 162, s. 7

Section 72 of the Parental Leave and Employment Protection Act 1987

Section 72 Awards and agreements to address principal aspects of parental leave

72.1 Subject to subsection (3) of this section, in registering an award or agreement under the Labour Relations Act 1987, the Arbitration Commission shall ensure that either

(a) The award or agreement provides that this Act shall apply to every worker bound by the award or agreement; or

(b) Where the award or agreement entitles workers to any form of parental leave otherwise than in accordance with this Act, the award or agreement addresses all of the following matters:

(i) The conditions of eligibility for any parental leave:

(ii) The duration of parental leave:

(iii) The degree of protection provided for the workers' positions in the employment of the employer during and subsequent to any absence on parental leave:

(iv) Whether or not the employer is obliged to pay remuneration during the parental leave:

(v) The procedural requirements relating to parental leave.

72.2 Subject to subsection (3) of this section, where any award or agreement registered by the Arbitration Commission pursuant to the Labour Relations Act 1987 does not address all of the matters referred to in subsection (1) (b) of this section

(a) All of the provisions in that award or agreement relating to parental leave shall be of no effect; and

(b) The entitlement to parental leave of every worker bound by that award or agreement shall be determined in accordance with Parts I to V of this Act.

72.3 Nothing in subsection (1) or subsection (2) of this section shall apply to an award or agreement in force immediately before the 1st day of October 1987 or registered at any time in the period beginning on the 1st day of October 1987 and ending on the 1st day of October 1988.

72.4 Notwithstanding the provisions of section 33 of the Holidays Act 1981, any award or agreement registered by the Arbitration Commission may, in addressing the matter of holiday pay for workers taking any period of parental leave otherwise than in accordance with this Act, provide that such workers shall be entitled to holiday pay,---

(a) In respect of annual holidays, at the same rate as, or at a higher rate than, the rate referred to in section 42 (2) of this Act:

(b) In respect of public holidays, of the same amount as, or of a greater amount than, the amount referred to in section 42 (3) of this Act.

72.5 For the purposes of this section, the 'Arbitration Commission' means the Arbitration Commission constituted under the Labour Relations Act 1987.