Holidays Act 2003
Part 2 Holiday and leave entitlements

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

Part 2 Holiday and leave entitlements

Subpart 1 - Annual Holidays

 Section 15 - Purpose of this subpart

Entitlement to annual holidays

 Section 16 - Entitlement to annual holidays

 Section 17 - How employee's entitlement to annual holidays may be met

 Section 18 - Taking of annual holidays

 Section 19 - When employee may be required to take annual holidays

 Section 20 - Employer may allow employee to take annual holidays in advance

Payment for annual holidays

 Section 21 - Calculation of annual holiday pay

 Section 22 - Calculation of annual holiday pay if holiday taken in advance

 Section 23 - Calculation of annual holiday pay if employment ends within 12 months

 Section 24 - Calculation of annual holiday pay if employment ends and entitlement to holidays has arisen

 Section 25 - Calculation of annual holiday pay if employment ends before further entitlement has arisen

 Section 26 - Payments may be cumulative

 Section 27 - When payment for annual holidays must be made

 Section 28 - When annual holiday pay may be paid with employee's pay

Closedown periods

 Section 29 - Meaning of closedown period

 Section 30 - Frequency of closedown periods

 Section 31 - Employer may have different closedown period for each part of business

 Section 32 - Requirement to take annual holidays during closedown period

 Section 33 - Payment of annual holiday pay during closedown period for employee entitled to annual holidays

 Section 34 - Calculation of pay during closedown period for employee not entitled to annual holidays

 Section 35 - Effect of closedown period on anniversary date of employee not entitled to annual holidays

Relationship between annual holidays and other entitlements

 Section 36 - Employer may allow employee taking annual holidays to take sick leave

 Section 37 - Employer must allow employee taking annual holidays to take bereavement leave

 Section 38 - Sickness injury or bereavement arising before scheduled annual holidays

 Section 39 - Employer may allow employee to take annual holidays if sick leave or bereavement leave exhausted

 Section 40 - Relationship between annual holidays and public holidays

Subpart 2 Entitlement to 4 weeks' annual holidays from 1 April 2007

 Section 41 - Purpose of this subpart

 Section 42 - Increase in minimum annual holiday entitlement

Subpart 3 Public holidays

 Section 43 - Purpose of this subpart

 Section 44 - Days that are public holidays

 Section 45 - Transfer of public holidays over Christmas and New Year

 Section 45A - Transfer of Waitangi Day and Anzac Day public holidays

Entitlement to public holidays

 Section 46 - Entitlement to public holidays

 Section 47 - When employee required to work on public holiday

 Section 48 - Compliance with section 46

Payment for public holidays

 Section 49 - Payment if employee does not work on public holiday

 Section 50 - Employer must pay employee time and a half for working on public holiday

 Section 51 - Transitional provision for employers who already pay for work on public holidays in employee's regular pay

 Section 52 - New employment agreements must include provision that complies with section 50

 Section 53 - Existing employment agreements must include provision that complies with section 50

 Section 54 - Questions about whether sections 50 to 53 complied with

 Section 55 - When payment for public holiday must be made

Alternative holiday

 Section 56 - Alternative holiday must be provided if employee works on public holiday

 Section 57 - Requirements of alternative holiday

 Section 58 - When employee may be required to take alternative holiday

 Section 59 - Entitlement to alternative holiday if employee on call on public holiday

 Section 60 - Payment for alternative holiday

 Section 61 - Alternative holiday may be exchanged for payment

Relationship between public holidays and other entitlements

 Section 61A - Sickness injury or bereavement on public holiday

Subpart 4 Sick leave and bereavement leave

 Section 62 - Purpose of this subpart

Entitlement to sick leave and bereavement leave

 Section 63 - Entitlement to sick leave and bereavement leave

 Section 64 - Employee must notify employer of intention to take leave

Sick leave

 Section 65 - Sick leave

 Section 66 - Sick leave may be carried over

 Section 67 - Sick leave need not be paid out

 Section 68 - Proof of sickness or injury

Bereavement leave

 Section 69 - Bereavement leave

 Section 70 - Duration of bereavement leave

Payment for sick leave and bereavement leave

 Section 71 - Payment for sick leave and bereavement leave

 Section 72 - When payment for sick leave or bereavement leave must be made

Section 15 Purpose of this subpart

The purpose of this subpart is to

(a) provide all employees with a minimum of 3 weeks' annual holidays to be paid at the time the holidays are taken; and

(b) require employers to pay employees at the end of their employment for annual holidays not taken; and

(c) enable employers to manage their businesses, taking into account the annual holiday entitlements of their employees.

From 1st April 2007 as per Schedule 1

(d) to ensure that, on and from 1 April 2007, when an employee next becomes entitled to annual holidays, the employee's minimum entitlement is increased from 3 weeks' annual holidays to 4 weeks' annual holidays.

Section 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 3 weeks' paid annual holidays.

From 1st April 2007 as per Schedule 1

Omit from subsection (1) the expression "3 weeks'" and substitute the expression "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; or

(ii) on parental leave under the Parental Leave and Employment Protection Act 1987; or

(iii) on protected voluntary service or training within the meaning of the Volunteers Employment Protection Act 1973; or

(iv) receiving weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act as well as, or instead of, payment from the employer; or

(v) on unpaid sick leave or unpaid bereavement leave; or

(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 taken all of the entitlement as paid holidays.

Section 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 3 weeks' annual holidays is to be met based on what genuinely constitutes a working week for the employee.

(2) If an employer and employee cannot agree on how an employee's entitlement to 3 weeks' annual holidays is to be met, a Labour Inspector may determine the matter for them.

(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) .

From 1st April 2007 as per Schedule 1

Omit from subsection (1) the expression "3 weeks'" and substitute the expression "4 weeks'".

Omit from subsection (2) the expression "3 weeks'" and substitute the expression "4 weeks'".

Section 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.

Section 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) as to when the employee will take his or her annual holidays; or

(b) section 32 (which relates to closedown periods) applies.

(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.

Section 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.

Section 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.

Section 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.

Section 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 6% of the employee's gross earnings since the commencement of employment, less any amount

(a) paid to the employee for annual holidays taken in advance; or

(b) paid in accordance with section 28.

From 1st April 2007 as per Schedule 1

Omit the expression "6%" and substitute the expression "8%".

Section 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.

Section 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 6% of the employee's gross earnings since the employee last became entitled to the annual holidays, less any amount

(a) paid to the employee for annual holidays taken in advance; or

(b) paid in accordance with section 28.

From 1st April 2007 as per Schedule 1

Omit from subsection (2) the expression "6%" and substitute the expression "8%".

Section 26 Payments may be cumulative

To avoid doubt,

(a) gross earnings for the purposes of section 25(2) includes any payments under section 24(2); and

(b) an employee may be entitled to payments for annual holidays under both section 24 and section 25.

Section 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.

Section 28 When annual holiday pay may be paid with employee's pay

From 1st April 2007 as per Schedule 1

Omit from subsection (1)(a)(ii) the expression "3 weeks'" and substitute the expression "4 weeks'".

Omit from subsection (1)(d) the expression "6%" and substitute the expression "8%".

(1) Despite section 26 , an employer may regularly pay annual holiday pay with the employee's pay if

(a) the employee

(i) is employed in accordance with section 66 of the Employment Relations Act 2000 on a fixed-term agreement to work for less than 12 months; or

(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 3 weeks' annual holidays under section 16; and

(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 6% of the employee's gross earnings.

(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; but

(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 and paid in accordance with this subpart.

Section 29 Meaning of closedown period

In this section and sections 30 to 35 , closedown period means a period during which an employer customarily

(a) closes the employer's operations or discontinues the work of 1 or more employees; and

(b) requires his or her employees to take all or some of their annual holidays.

Section 30 Frequency of closedown periods

(1) For the purposes of sections 31 to 35 , the employer may have only 1 closedown period in any 12-month period.

(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 do not apply.

Section 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.

Section 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).

Section 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; and

(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.

Section 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 6% of the employee's gross earnings since the commencement of the employee's employment or since the employee last became entitled to annual holidays (as the case may be), less any amount

From 1st April 2007 as per Schedule 1

Omit from subsection (2) the expression "6%" and substitute the expression "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 and be paid for the period in accordance with section 22.

Section 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) to discontinue his or her work during a closedown period, the employee's 12 months of continuous employment must, for the purposes of section 16(1) , be treated as commencing on the date on which the closedown began.

(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.

Section 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 dependant who becomes sick or injured.

(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.

Section 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.

Section 38 Sickness

(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 dependant who becomes sick or injured; or

(iii) suffers a bereavement as described in section 69(2).

(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.

Section 39 Employer may allow employee to take annual holidays if sick leave or bereavement leave exhausted

(1) This section applies if

(a) an employee has exhausted his or her entitlement to sick leave under subpart 4 , but then

(i) becomes or remains sick or injured; or

(ii) has a spouse or dependant who becomes or remains sick or injured; or

(b) an employee requires more leave for a bereavement than he or she is entitled to under subpart 4.

(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 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.

Section 41 Purpose of this subpart

The purpose of this subpart is to ensure that, on and from 1 April 2007, when an employee next becomes entitled to annual holidays the employee's minimum entitlement is increased from 3 weeks' annual holidays to 4 weeks' annual holidays.

Section 42 Increase in minimum annual holiday entitlement

Subpart 1 of this Part is amended in the manner indicated in Schedule 1.

Section 43 Purpose of this subpart

The purpose of this subpart is

(a) to provide employees with an entitlement to 11 public holidays if the holidays fall on days that would otherwise be working days for the employee:

(b) to enable employees to agree to work on a public holiday in exchange for another day's paid leave.

Section 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):

(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) However, an employer and employee may agree (whether in an employment agreement or otherwise) that any public holiday specified in subsection (1) is to be observed by the employee on another day.

(3) An agreement between the employer and employee under subsection (2) must not diminish the total number of paid public holidays that would otherwise be available to the employee in any year.

(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.

Section 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).

Section 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 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.

Section 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.

Section 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 is complied with if

(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 is complied with if

(a) the employee

(i) does not work on that day; and

(ii) the employer pays the employee in accordance with section 49; or

(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; and

(iii) the employer provides the employee with an alternative holiday under section 56.

Section 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 for that day.

Section 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 (less any penal rates) that relates to the time actually worked on the day plus half that amount again; or

(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 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; and

(c) the employer can provide evidence to support the requirements in paragraphs (a) and (b).

Section 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 for working on a public holiday.

(3) To avoid doubt, the employment agreement may not state that the relevant daily pay of the employee already includes an amount that is calculated to comply with section 50.

Section 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 for working on a public holiday.

(3) The date is,

(a) for an existing collective agreement to which section 51 applies, 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) for an existing individual employment agreement to which section 51 applies, 1 April 2007:

(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 of the employee already includes an amount that is calculated to comply with section 50.

Section 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 , or section 53 is an employment relationship problem for the purposes of the Employment Relations Act 2000.

Section 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.

Section 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) instead of a public holiday if

(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) or 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.

Section 57 Requirements of alternative holiday

(1) An alternative holiday provided under section 56 must

(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.

(2) If an employer and employee cannot agree under subsection (1)(a) on when an alternative holiday is to be taken, then the day may be taken

(a) on a date determined by the employee, taking into account the employer's view as to when it is convenient for the employee to take the day; and

(b) within 12 months of the employee's entitlement to the alternative holiday having arisen.

(3) An employee must give an employer at least 14 days' notice of his or her intention to take the alternative holiday.

Section 58 When employee may be required to take alternative holiday

An employer may require an employee to take an alternative holiday on a date determined by the employer only if

(a) 12 months have passed since the employee's entitlement to the alternative holiday arose; and

(b) the employer and employee have not been able to agree under section 57(1)(a) on a date on which the employee will take the day; and

(c) the employer has given the employee at least 14 days' notice of the date on which the employer requires the alternative holiday to be taken.

Section 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 (which requires payment of time and a half for working on a public holiday).

Section 60 Payment for alternative holiday

(1) An employer must pay an employee not less than the employee's relevant daily pay for the day which is taken as the alternative holiday.

(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 for his or her last day of employment; and

(ii) in the pay that relates to the employee's final period of employment.

Section 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 58.

(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 61A Sickness injury or bereavement on public holiday

(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 dependant who becomes or remains sick or injured; or

(b) the employee suffers or has suffered a bereavement as described in section 69(2).

(2) If this section applies,

(a) the public holiday must continue to be treated as a public holiday and not as sick leave or bereavement leave for the employee; and

(b) to avoid doubt, the employee

(i) must be paid for the day in accordance with section 49 and is not entitled to be paid at time and a half in accordance with section 50(1)(a) ; and

(ii) is not entitled to an alternative holiday under section 56.

Section 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.

Section 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.

Section 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.

Section 65 Sick leave

(1) An employee may take sick leave if

(a) the employee is sick or injured; or

(b) the employee's spouse is sick or injured; or

(c) a person who depends on the employee for care is sick or injured.

(2) An employee is entitled to 5 days' sick leave for each of the 12-month periods specified in section 63(2).

Section 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 15 days' sick leave to a maximum of 20 days' current entitlement in any year.

(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.

Section 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.

Section 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 if the sickness or injury that gave rise to the leave is for a period of 3 or more consecutive calendar days, whether or not the days would otherwise be working days for the employee.

(1A) Despite subsection (1), the employer may require proof of sickness or injury within 3 consecutive calendar days if the employer

(a) has reasonable grounds to suspect that the sick leave being taken by the employee is not genuine because none of the grounds in section 65(1) are met; and

(b) informs the employee, as early as possible after forming the suspicion that the sick leave being taken is not genuine, that the proof is required; and

(c) 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 may include a certificate from a medical practitioner (within the meaning of the Medical Practitioners Act 1995) that

(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 is sick or injured:

(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.

Section 69 Bereavement leave

(1) An employee may take bereavement leave in accordance with sections 63 and 70 if the employee suffers a bereavement.

(2) An employee suffers a bereavement

(a) on the death of the employee's

(i) spouse:

(ii) parent:

(iii) child:

(iv) brother or sister:

(v) grandparent:

(vi) grandchild:

(vii) spouse's parent; or

(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.

(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.

Section 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); and

(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 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 for each day of sick leave or bereavement leave taken by the employee that would otherwise be a working day for the employee.

(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 Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act.

(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 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act; or

(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.

Section 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 and fails without reasonable excuse to do so, the employer is not required to pay the employee for any sick leave in respect of which the proof is required until the employee complies with that requirement.

End of Part 2 Holiday and leave entitlements