Wilkinson Kate: Holidays (Transfer of Public Holidays) Amendment Bill — First Reading 
Wilkinson Kate: Holidays (Transfer of Public Holidays) Amendment Bill — First Reading 
[Volume:647;Page:15874] 
KATE WILKINSON (National) 
: 
 I rise to support the first reading of the Holidays (Transfer of Public Holidays) Amendment Bill. This amendment to the Holidays Act 2003 is required following a recent Supreme Court decision that found that an employer and an employee could not agree to transfer a public holiday from a day listed in the Act to another day. 
This is a very narrow bill; the issue is limited. It is not a wide-ranging bill by any means. As the Minister has stated it amends the definition of public holiday to include by agreement a period of 24 hours agreed to be treated as a public holiday but to exclude part of a day agreed to be treated as not being part of a public holiday. Then it gives the example of an employee who is to work from 10 p.m. on 24 April to 6 a.m. on Anzac Day and from 10 p.m. on Anzac Day to 6 a.m. on 26 April. The employee and the employer can agree to treat the time from 10 p.m. to midnight on Anzac Day as not being part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. So the bill allows parties to treat one entire shift that is split over 2 days where one day is not a public holiday as if that shift were entirely worked on a public holiday. Under this amendment the employee and the employer can sit down and reach an agreement and we trust them to do that. 
Just by way of background I tell members that the regulatory impact and compliance costs statement to the original Holidays Bill before it was dramatically altered at the select committee stated in 2003: “The Holidays Act 1981 does not reflect current working patterns or social and economic developments since its enactment. The Act has attracted criticism from the public and employer and employee groups over recent years for being complicated and difficult to understand and apply.” It stated further: “During the year to 30 September 2002 59393 (26%) enquiries to the Employment Relations Service infoline related to holidays.” That was 5 years ago. In fact the select committee report stated: “By majority we recommend substantial redrafting of the bill to make it explicit in what circumstances the public holiday entitlements would arise and to clarify the intent of the bill.” 
The general policy statement overview at that time explicitly stated: “The Holidays Bill implements Government policy by providing entitlements that are easy to understand and easy to apply.” Well that did not work because it is back here again for more clarifying amendments. In fact at the time of the 2003 bill the Minister actually admitted “the current Holidays Act is an extremely difficult piece of legislation to apply and to interpret. Areas previously left to the courts to interpret and develop have been dealt with in the bill. That will mean that users will not have to refer to the numerous judicial decisions that supplement the current legislation.” 
The Minister back then heralded the original legislation as providing “certainty clarity and consistency”. All I can say to that is “Yeah right!” because here we are again a few years later back before Parliament with amendments to improve that very same legislation in order to provide certainty clarity and consistency. Let us hope that it works this time—third time lucky. 
A few years back Minister Cosgrove himself vowed solemnly in this House that the bill provided clarity but here we are again years later after a Supreme Court decision saying that there is no clarity and the legislation is trying to fix it. I have to say that I prefer the judgment and the wisdom of the three Supreme Court judges. 
With a background like that one would reasonably expect a better less complicated bill and one that is easier to understand. But no what we got was arguably much worse. We got a bill that had to go to the highest court in our land the Supreme Court which made statements such as “Parliament can hardly have intended to create this potential for confusion and disputes.” but it did. This Parliament under this Labour-led Government has created such confusing difficult complex legislation that no one seems to be able to understand it and now it is introducing a bill to fix one part of that original complex difficult legislation. 
As Business New Zealand stated clearly the Holidays Act is not up to the job. This case has now been through multiple courts. With two split decisions and another court ruling to come and with the latest ruling by the Supreme Court at 49 pages long it shows how defective the Holidays Act is. “Employers want the flexibility to meet business needs and employees want to be compensated for their part in achieving that. Employees also want the flexibility to choose the holiday arrangements they want. The Holidays Act should make it straightforward and simple for them to come to agreements that suit them both.” 
But this is not the first time that this holidays legislation has had to be amended because of unintended consequences. The Holidays Act originally came into force on 1 April 2004. Less than 6 months later—that very same year—there was an amendment the 2004 amendment to correct some unintended consequences. I have to ask whatever happened to “do it once do it right”. If we read the debate back in 2004 we see that even New Zealand First agreed and stated: “We went through this in 2003 and got it wrong by quite some. It was far worse than we in New Zealand First estimated and I think it was far worse than many of the submitters who were concerned by the 2003 legislation thought. Now this 2004 bill has tidied up two fairly minor parts of the legislation but we should be dealing with the whole thing. Let us do it once and do it right.” That was what New Zealand First members stated. They also stated: “The holidays legislation in this country is in a mess. It is absolutely in a mess. Employers do not understand it employees do not understand it.” I would have to say that they were right and that after all this time—4 to 5 years later—nothing seems to have changed. 
In that debate it was said that the Holidays Act that had been passed by the Labour Government in that last year was such a shambles that in the following week it was before the Employment Court to try to get a ruling on how to deal with the Act and we are here again. It is not before just the Employment Court. This case had gone right up to the Supreme Court before this Labour Government realised that it was just plain wrong. It got the bill wrong it had the chance to fix it once it did not and now it is trying yet another piecemeal fix to one part of the Act because of unintended consequences due to sloppy drafting and because of one case. 
But this is not the only problem caused by the complexity of the holidays legislation. Why does the Government not fix the rest of it? As one employment specialist stated in May last year: “Rather than simplify the law relating to holidays the Holidays Act has resulted in an increase in litigation as employers employees and unions all endeavour to come to terms with interpretation of differing sections of the Act.” Nothing seems to have changed. Will this bill actually make much difference? Hopefully it will fix one of the problems as highlighted in the Supreme Court case but there are other problems that it does not even mention. We are back in Parliament again 4 or 5 years later trying to fix something that has gone wrong when we should be debating other legislation in this House. We are trying to right yet another unintended consequence that has been foisted upon us by this Labour-led Government. 
National will be supporting this bill going to a select committee for scrutiny. We hope that it will get proper scrutiny. We hope even that there may be some opportunity for change—some opportunity to further clarify what is most complex and confusing legislation. Employers and employees alike need and deserve legislation that has certainty. They need to know what the legislation says. They should not have to resort to legal processes all the way up to the Supreme Court for an interpretation of what the legislation says and means. Labour has got it wrong. Is it able to get it right third time lucky? Let us hope so. National will be supporting this bill at its first reading.