Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698846201270.pdf (New Zealand)
Holidays (Transfer of Public Holidays) Amendment Bill Government Bill Explanatory note General policy statement The Holidays (Transfer of Public Holidays) Amendment Bill imple­ ments government policy concerning the transfer of public holidays for employees whose work shift crosses midnight, by ensuring that when a shift spans 2 days, at least 1 of which is a public holiday, an agreement can be reached for the public holiday to be transferred to cover 1 whole shift.
This legislation is needed following the recent Supreme Court de­ cision New Zealand Airline Pilots’ Association Industrial Union of Workers Incorporated v Air New Zealand Limited (14 November 2007, SC 91/2006), which found that an employer and an employee cannot agree to transfer a public holiday from a day listed in the Holi­ days Act 2003 to another day.
The original intention of the Holi­ days Act 2003 was to give employers and employees the ﬂexibility to transfer a public holiday, from a day listed in the Act, for reasons of cultural or personal signiﬁcance or for reasons of convenience.

The Bill amends the Holidays Act 2003 to allow for a public holiday to be transferred where certain circumstances are met.
The proposed amendment will ensure that where an employee’s shift spans 2 cal­ endar days, and 1 of those days is a public holiday, an employer and employee can enter into a genuine agreement to transfer the public 207—1 2 Holidays (Transfer of Public Holidays) Amendment Bill Explanatory note holiday to a 24­hour period that begins or ends on the public holiday.

Such a transfer cannot reduce an employee’s statutory right to public holidays.
The Bill ensures that employers that operate over 24­hour periods, and the employees who work for them, will have the ﬂexibility to agree to redeﬁne a public holiday in line with the operational needs of the employer or the needs of the employee.

Clause by clause analysis Clause 1 is the Title clause.

Clause 2 is the commencement clause.

The Bill is to come into force on the day after the date on which it receives the Royal assent.
Part 1 Preliminary provisions Clause 3 provides that the Bill amends the Holidays Act 2003.

Clause 4 states the purpose of the Bill.

Part 2 Amendments to principal Act Clause 5 amends section 5(1) to substitute a new deﬁnition of public holiday.

The new deﬁnition clariﬁes that a public holiday is a day listed in section 44(1) and, if there is an agreement under new section 44A to transfer a public holiday, includes a period agreed to be treated as a public holiday.
Clause 6 amends section 43 to clarify that 1 of the purposes of the public holidays sections is to provide for the transfer of public holi­ days in limited circumstances.

Clause 7 amends section 44 to repeal 2 provisions about the obser­ vance of public holidays on other days.

These provisions will be overtaken by new section 44A inserted by the next clause.

Clause 8 inserts new section 44A, which provides for the transfer of a public holiday speciﬁed in section 44(1).
An employee and employer can agree to do this only in limited circumstances.

This is where the employee is to start work on a day and ﬁnish work on the following day, and 1 or both of those days are public holidays speciﬁed in sec­ Explanatory note Holidays (Transfer of Public Holidays) Amendment Bill 3 tion 44(1).
In these circumstances, the employee and employer can agree that part of 1 or both of those days is to be treated as not part of a public holiday, and— • if the agreement relates to only 1 of those days, that a period of 24 hours is to be treated as a public holiday if the period— starts or ﬁnishes during the day concerned; and • includes the period when the employee is to start work • and ﬁnish work: • if the agreement relates to both days, that 2 separate periods of 24 hours are to be treated as public holidays if each period— • • starts or ﬁnishes during those days; and includes the period when the employee is to start work and ﬁnish work.
Regulatory impact statement Executive summary An amendment to the Holidays Act 2003 (the Act) is required follow­ ing a recent Supreme Court decision, which found that an employer and an employee cannot agree to transfer a public holiday from a day listed in the Act to another day.
The original intention of the Holi­ days Act 2003 was to give employees and employers the ﬂexibility to transfer a public holiday, from a day listed in the Act, for reasons of cultural or personal signiﬁcance or reasons of convenience.

The reduction in ﬂexibility has a signiﬁcant impact for shift­based oper­ ations and means that businesses do not have the ﬂexibility to agree to redeﬁne a public holiday in line with the operational needs of the employer or the needs of the employee.
Adequacy statement The Department of Labour has reviewed this regulatory impact state­ ment and considers it is adequate according to the adequacy criteria.
Status quo and problem The Supreme Court decision in New Zealand Airline Pilots’ Associ­ ation Industrial Union of Workers Incorporated v Air New Zealand Limited (14 November 2007, SC 91/2006) found that an employer and an employee cannot agree to transfer a public holiday from a day 4 Holidays (Transfer of Public Holidays) Amendment Bill Explanatory note listed in the Act to another day.
The original intention of the Holi­ days Act 2003 was to give employers and employees the ﬂexibility to transfer a public holiday, from a day listed in the Act, for reasons of cultural or personal signiﬁcance or for reasons of convenience.

One effect of the court’s decision was to render invalid transfer agree­ ments, including transfer agreements that covered some shift work­ ers.
These agreements provided that where an employee’s shift over­ lapped into a public holiday, the shift was worked and paid for as a normal shift, and the next shift was allowed as the employee’s public holiday.

This ﬂexibility to transfer a public holiday to the following shift allowed employees the opportunity to enjoy a full shift off as a public holiday.

Employers also beneﬁted for production and payroll purposes.
Monitoring by the Department of Labour over the 2007/2008 Christ­ mas period revealed that the impact of the Supreme Court’s decision on shift work has been signiﬁcant.

Where an employer chooses to close down on the public holiday, employees are required to work up to midnight of the public holiday and complete their shift from mid­ night at the end of the public holiday.
These arrangements are not reﬂective of the overall intent of the Act to promote balance between work and other aspects of employees’ lives.

Because of the Supreme Court decision, the Act no longer accommodates these non­standard working conditions in relation to entitlements to public holidays.

In the 1999 Time Use Survey, carried out by Statistics New Zealand, around 4% of workers indicated that on any given day they were at work between midnight and 4 am.
Objectives The overall purpose of the Act is to promote balance between work and other aspects of employees’ lives.

To that end, the Act provides employees with minimum entitlements to public holidays for the ob­ servance of days of national, religious, or cultural signiﬁcance.

This included provision to transfer a public holiday from a day listed in the Act to another day.
The Act also allows the parties to agree enhanced and additional en­ titlements provided they do not exclude or reduce any employee’s entitlement to public holidays.

The objective of legislative change is to give effect to the above for shift workers.
Explanatory note Holidays (Transfer of Public Holidays) Amendment Bill 5 Alternative options Maintaining status quo This option would mean that employers and employees will not have the ﬂexibility to enter into agreements that where a shift spans 2 cal­ endar days, and 1 of those days is a public holiday, the public holi­ day may be observed at another time.

Business New Zealand (Busi­ ness NZ) has indicated that this option would not be supported by shift­based businesses.
The disadvantages of maintaining the status quo are likely to be that— • shift­based businesses will have less ﬂexibility around organ­ ising night shifts, which could interrupt continuous production resulting in increased production costs: shift­based businesses will need to make changes to their pay­ roll systems, resulting in increased costs: shift­based businesses may make changes to their working hours to mitigate the effect of the Supreme Court decision and this may be unpopular with their employees, resulting in nega­ tive impacts on employment relationships: there will be some uncertainty, confusion, and possible breaches of law that will disrupt shift­based businesses and undermine the Act.
• • • An advantage of the status quo is the prevention of possible abuse by employers of the ability to transfer.

Consider legislative amendment in 2009 following Department of Labour’s evaluation of Holidays Act 2003 An amendment of the Act could be reconsidered after the Depart­ ment of Labour’s planned evaluation of the effectiveness of the Act in achieving its objectives.

Adopting this option would mean that le­ gislative amendments would not be considered before 2009.
The disadvantage of this option is that the time delay will result in the continued disruption and loss of production to shift­based businesses identiﬁed above.

This could be mitigated if there is a commitment to consider this issue as part of the 2008/2009 evaluation of the Act.

An advantage of this option is that a full and considered policy re­ sponse can be developed following the evaluation.
6 Holidays (Transfer of Public Holidays) Amendment Bill Explanatory note Preferred option The preferred option is to amend the Act to ensure where an em­ ployee’s shift spans 2 calendar days, and at least 1 of those days is a public holiday, an employer and employee can enter into a gen­ uine agreement that the public holiday may be observed on a 24­hour period that begins or ends on the public holiday, if the employee is due to work a shift in that 24­hour period.
The advantages of this option are that— • shift­based businesses will have ﬂexibility around organising night shifts.

This will allow— • 24 hour operations to provide their employees with cer­ tainty and predictability concerning their working hours and their public holidays; and continuous production resulting in decreased produc­ tion costs: • • compliance costs would be reduced for businesses because payroll systems need not be altered to provide for splitting shifts.
If those systems have already been changed, those costs cannot be avoided and the public holidays that employ­ ees in shift­based operations can take will be affected until the amendment is passed.

This option is likely to be supported by shift­based businesses who are calling for a speedy return to the situation that was in place prior to the Supreme Court’s decision.
Implementation and review The narrow amendment would make the legislative framework simi­ lar to how it was prior to the Supreme Court’s decision for shift­based operations concerning shifts that cross into or out of a public holiday.

This will reduce compliance costs for shift­based businesses that will be able to return their payroll systems and employment agreements to their original status, if the employment agreements included transfer agreements that comply with the new amendment.
Any compliance costs associated with becoming familiar with the amendment will be offset through an information campaign including publications, web­ sites, and the call centre.

Following the 2008/2009 Holidays Act 2003 evaluation, the situation will be reviewed.

Although there will only be limited effects by that Explanatory note Holidays (Transfer of Public Holidays) Amendment Bill 7 stage, this will allow ofﬁcials to look at the broader issue and see what impact this change has had.
Consultation Business NZ and the New Zealand Council of Trade Unions (NZCTU) have been consulted in relation to the RIS and the drafting of the Bill.

The alternative options identiﬁed above have been discussed with Business NZ and the NZCTU who support the amendment and consider that the costs of time delay and uncertainty need to be addressed immediately.

Business NZ and the NZCTU have indicated their support for the preferred option.
The State the Ministry of Economic Services Commission, Development, the Ministry of Social Development, the Ministry of Women’s Affairs, and the Ministry of Paciﬁc Island Affairs have been consulted about the contents of this paper.
the Treasury, Hon Trevor Mallard Holidays (Transfer of Public Holidays) Amendment Bill Government Bill Contents Title Commencement Part 1 Preliminary provisions Principal Act amended Purpose Part 2 Amendments to principal Act Interpretation Purpose of this subpart Days that are public holidays New section 44A inserted 44A Transfer of public holiday Page 1 2 2 2 2 2 3 3 3 The Parliament of New Zealand enacts as follows: 1 Title This Act is the Holidays (Transfer of Public Holidays) Amend­ ment Act 2008.
207—1 1 Holidays (Transfer of Public Holidays) Amendment Bill Commencement This Act comes into force on the day after the date on which it receives the Royal assent.

Part 1 Preliminary provisions Principal Act amended This Act amends the Holidays Act 2003.

5 Purpose The purpose of this Act is to amend the public holidays provi­ sions of the principal Act to provide for the transfer of public 10 holidays in limited circumstances.
Part 2 Amendments to principal Act Interpretation Section 5(1) is amended by repealing the deﬁnition of public 15 holiday and substituting the following deﬁnition: “public holiday— “(a) means a day speciﬁed in section 44(1); and “(b) if there is a written agreement under section section 44A44A44A,— section “(i) includes a period of 24 hours agreed to be treated 20 as a public holiday; but excludes a part of a day speciﬁed in section 44(1) agreed to be treated as not part of a public holi­ day”.
“(ii) Purpose of this subpart Section 43 is amended by repealing paragraph (b) and substi­ tuting the following paragraphs: “(b) to provide for the transfer of public holidays in limited circumstances: to specify the entitlements of employees in relation to 30 public holidays.” “(c) 25 cl 2 Holidays (Transfer of Public Holidays) Amendment Bill Part 2 cl 8 7 8 Days that are public holidays Section 44 is amended by repealing subsections (2) and (3).
New section 44A inserted The following section is inserted after section 44: “44A Transfer of public holiday “(1) This section applies if— 5 “(a) an employee is to start work on a day and ﬁnish work on the following day; and “(b) 1 or both of those days are speciﬁed in section 44(1).
“(2) The employee and his or her employer may agree in writing 10 (whether in an employment agreement or otherwise)— “(a) that part of 1 or both days speciﬁed in section 44(1) is to be treated as not part of a public holiday; and that,— “(i) “(b) if the agreement relates to only 1 day speciﬁed in 15 section 44(1), a period of 24 hours is to be treated as a public holiday if the period— “(A) is to start or ﬁnish during the day speciﬁed in section 44(1); and includes the period from when the em­ 20 ployee is to start work to when the em­ ployee is to ﬁnish work: “(B) “(ii) if the agreement relates to 2 days speciﬁed in section 44(1), 2 separate periods of 24 hours are to be treated as public holidays if each period— 25 is to start or ﬁnish during the days speci­ “(A) ﬁed in section 44(1); and includes the period from when the em­ ployee is to start work to when the em­ ployee is to ﬁnish work.
“(B) 30 “(3) To avoid doubt, a period of 24 hours agreed under this section to be treated as a public holiday is a public holiday whether or not the employee works during that period.
subsection (2)(2)(2) must not diminish the “(4) An agreement under subsection subsection total number of paid public holidays that would otherwise be 35 available to the employee in any year.” 3 Part 2 cl 8 Holidays (Transfer of Public Holidays) Amendment Bill 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 mid­ night on Anzac Day as not part of a public holiday in exchange 5 for treating a period of 24 hours that ﬁnishes on Anzac Day as a public holiday.

Just when the 24­hour period starts before or ﬁnishes after a work period is a matter for the parties to agree on.

For instance, they would agree that it runs from midday on 24 April to midday on Anzac Day.

10 12 4 Wellington, New Zealand: Published under the authority of the New Zealand Government—2008