Holidays (Transfer of Public Holidays) Amendment Bill — Second Reading In Committee Third Reading 
Holidays (Transfer of Public Holidays) Amendment Bill — Second Reading In Committee Third Reading 
[Volume:650;Page:19260] 
Holidays (Transfer of Public Holidays) Amendment Bill 
Second Reading 
Hon TREVOR MALLARD (Minister of Labour) 
: 
 I move  
That the Holidays (Transfer of Public Holidays) Amendment Bill be now read a second time 
. This is a simple bill. I think it comes from a mistake on the part of a court and it was decided that it would be easier to sort it out in this way rather than in any other. The mistake led to something that none of the parties involved in the case wanted as a result. We have an increasing degree of unanimity between the Council of Trade Unions and Business New Zealand around the stability of employment law in New Zealand and this bill puts the law back to what everyone thought it was. Thank you. 
KATE WILKINSON (National) 
: 
 National is of course supporting the Holidays (Transfer of Public Holidays) Amendment Bill through both its second and third readings. This must be one of the few bills relating to employment that has gone to the Transport and Industrial Relations Committee unopposed. It passed through the select committee without any amendment it continues to be unopposed and National will of course continue to support it. As the Minister has stated all that this bill really does is to fix up a muck-up of the Government which got the law wrong in the first place. It drafted legislation that should have been certain that should have been straightforward and that should have been able to be understood but that failed. 
This issue went to the highest court in our land the Supreme Court which had to try to work out what the definition of “public holiday” in the Holidays Act actually means. It took a judgment of approximately 50 pages to then try to work out what this House intended with regard to its definition of “public holiday” back in 2002. That Supreme Court decision involving the New Zealand Air Line Pilots’ Association and Air New Zealand basically held that under the current legislation an employer and an employee could not agree to transfer a public holiday from a day listed in the Act to another day. All that this bill seeks to do in reflecting that Supreme Court decision is to provide that the definition of “public holiday” can include by agreement a period of 24 hours being treated as a public holiday but to exclude agreement to part of a day being treated as not being part of a public holiday. 
Usefully we are given an example of an employee who works from 10 p.m. on 24 April to 6 a.m. on 25 April—Anzac Day—and from 10 p.m. on Anzac Day to 6 a.m. on 26 April. Under this bill the employee and the employer can agree to treat the time from 10 p.m. to midnight on Anzac Day as a public holiday. In other words the bill allows the 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. 
That is all that this bill does; it is a very narrow bill. Some submitters have suggested widening its scope but in the end the bill has come back to the House unamended. As one of the submitters suggested there are also other defects in the Holidays Act. This year those living in Southland actually missed out on a holiday completely because of the definition of “public holiday”. Also a public holiday in one of the other regions still has not been gazetted even though it is observed as if it were a public holiday. So this bill is a very very narrow amendment and it could have gone a lot further than it has. Certainly some defects still remain in the principal Act. Let us hope that at some stage that Act will be amended once and for all so that employees and employers can have certainty as to what it actually means. 
It is really like a situation of déjà vu. Five years ago when the original bill was first looked at the select committee report stated that “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.” Well it would appear that the select committee report went unheeded because that did not happen and after further amendments we are back here 5 years later trying to clarify the intent of the Act and we now have yet another amendment to it. It is interesting to look back to 2002 which was about the time of the original holidays legislation. I understand that at that time about 75 percent of all inquiries to the labour inspectors related to holidays. It was quite an important issue. One would have thought that this Government would address some of those issues but no we have a narrow narrow bill. 
We had about 10 submitters on the bill. None of them opposed it. Again I say it is interesting in relation to employment law that there was no opposition to the bill. It has passed through the process so far without any amendments and even at the Committee stage there are no Supplementary Order Papers to be considered. I think that is probably a remarkable feat in this House in terms of employment law. 
Actually the holidays legislation is still in a mess. Employers still do not understand it even with this small amendment and employees still do not understand it. But rather than fixing it once and for all what does this Government do? All it does is to introduce this narrow narrow amendment to fix a narrow narrow area as a result of one Supreme Court decision. When the next Supreme Court decision is made on the next narrow aspect that no one understands then we will be back once again in this House under this Government to fix the next problem. 
Let us hope that does not happen and that the next review of the holidays legislation is done properly so it deals with the whole Act and not just with one small part of it and it deals with it in discussion with both employer groups and employee groups so that we have comprehensive legislation that both employers and employees can at least understand. Employers and employees alike need and deserve legislation that provides certainty. They should be able to know what the legislation says and what it means; they should not have to go to the Supreme Court to ask the justices what it means. They should not have to resort to the legal process all the way up to the Supreme Court for an interpretation of what Parliament intended and of what the legislation actually says and means. 
The bill goes only so far. As one submitter stated it does not deal with the Supreme Court’s prohibition on transferring an entire public holiday to some other day but at least it will allow for greater flexibility by agreement where shift work overlaps on 2 calendar days. National supports this bill. We supported it through its first reading we supported it through the select committee process we are supporting it now through the second reading and later we will support it through the Committee stage and the third reading. 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I do not intend to take a long call; this is a very straightforward bill. I think it is fair to say that this matter was overlooked when the Holidays Act went through the House some 3 or 4 years ago. I agree with the latter part of Kate Wilkinson’s speech but I think it was most unkind of her to say that this was a Government stuff-up. New Zealand First was on the Opposition benches at that time and Kate Wilkinson was not a member. Wayne Mapp will agree that this was a matter of significant debate both at the Transport and Industrial Relations Committee and in this House. 
New Zealand First did not agree with everything in the Holidays Bill when we went through it—we had concerns. But we are big enough ugly enough and strong enough to say that the legislation has gone through this House and that people in this country are entitled to have proper protective holiday legislation. At the time we were supportive of most of the bill but not all of it. I think in our last vote we voted against it but having said that we were in large measure supportive of it. The provisions in this legislation needed to be addressed; we all know that. We are all going to agree with the bill. Let us get on with it and do it. New Zealand First supports this bill. 
METIRIA TUREI (Green) 
: 
 I will make just a short comment on this Holidays (Transfer of Public Holidays) Amendment Bill on behalf of my colleague Sue Bradford who is not here this morning and this will be our only comment on the bill this morning. We support the bill. We raised concerns at the first reading that this kind of piecemeal change to the Holidays Act is not good enough and we say that a proper look at it needs to be taken. Fixing up little bits as they pop up is useful to some extent but it does not actually do the job of making sure that workers’ rights are fully considered and protected. 
In respect of holidays we are always particularly concerned about the most vulnerable workers. People have a right to participate in their community activities and their families and public holidays are often the one opportunity for them to be able to do that. This is especially so for those vulnerable workers who work shift work or split shifts. They do not always work on Mondays and therefore are not always entitled to holidays on Mondays. 
People work to live they do not live to work and that needs to be better respected. We have very few public holidays in this country compared with other countries and we really need to beef up the commitment to enable people in our communities to contribute to their community and family life rather than being just economic units producing cash for large multinational corporations—and for some local domestic ones as well. 
We are very pleased to see the bill come to fruition. We are looking forward to its speedy progress but it is not enough just of itself; more needs to be done. Thank you. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Morena tatou e tenei ata. At this point in the urgency programme there is something very attractive about the concept of holidays although sleep is an even more attractive option at this point of the programme—and going home. We are pleased to support this Holidays (Transfer of Public Holidays) Bill which amends the Holidays Act 2003 to ensure that when a work shift spans two days and at least one of those days is a public holiday an employer and an employee can enter into an agreement to transfer the public holiday to cover one whole shift. It all sounds very complicated I suppose but in reality what the bill does is reinstate previous practices that benefited both the employer and the employee. 
We are pleased that the bill is supported by both employers and employees—a win-win situation all around. In fact this proposal has been so well accepted I understand that the employees of Heinz-Wattie have actually made a joint application for the change with the company. As I understand it the bill provides specifically for agreement about such a transfer to be reached in certain circumstances. These circumstances are when say the shift spanning two days starts or finishes on a public holiday. 
The first point to note is that the legislation is intended to specifically address the consequences of the Supreme Court decision in the airline pilots case. The effect of the Supreme Court decision was to overturn the Employment Court decision in the Heinz-Wattie case. The Heinz-Wattie case that went to the Employment Court dealt with the issue of shift workers whose shifts cross midnight. The Employment Court had found that workers and employers could agree to observe a public holiday based on the shift patterns rather than on the period from midnight to midnight. The Employment Court’s decision was generally supported both by unions and employers whereas the Supreme Court found that a public holiday can be only one of the days listed in section 44 of the Holidays Act. This is where it becomes rather complicated. 
The general policy statement in the bill specifically states: “This legislation is needed following the recent Supreme Court decision  
New Zealand Airline Pilots’ Association Industrial Union of Workers Incorporated v Air New Zealand Limited 
”. However it deals with only the Heinz-Wattie case issue of shift workers. It does not address the issue of for example workers who want to observe days of cultural significance other than those listed in the Act. Basically the bill proposes to repeal section 44(2) of the Holidays Act altogether and effectively replace it with new section 44A which deals only with the Heinz-Wattie scenario of shift workers. In other words the bill appears to narrow the circumstances in which a public holiday can be transferred to only the situation where shift workers’ shifts cross midnight. 
However the general principle of workers having the ability to observe days of cultural significance to them rather than being limited to those days listed in the Act is a good one we believe provided it is not open to abuse. The best way of doing that the Maori Party thinks would be to provide that such arrangements require an agreement between the employer and the employee and to provide that they can be initiated by employees only. 
The scenario might be for example that a Muslim worker wants to observe the beginning of Ramadan which is a day of cultural significance to him or her rather than Christmas Day. Or a worker may want to celebrate the birthday of Tahupotiki Wiremu Ratana or perhaps the monthly hui on the 18th of the month as practised at Parihaka—as my colleague Mahara Okeroa would know—or the on 12th of the month as practised by the Ringatu people. That worker would be able to request that he or she works on Christmas Day and that the nominated day of cultural significance would become his or her public holiday. We think that is a pretty good idea. The employer would not be able to withhold agreement unreasonably. The worker would not be entitled to time and a half for working on Christmas Day. 
The Maori Party will be supporting this bill. We have spoken to a number of different union organisations and we know that their members are very supportive of this bill. We know that Business New Zealand and the Council of Trade Unions have been consulted and that they both support the amendment. 
Many of these same members work in food factories that run 24-hour production lines and they work 11 p.m. to 7 a.m. night shifts so they are directly affected by this bill. What appears to have happened as a result of the Supreme Court ruling is that at midnight the pay rate changes which causes hassles for payroll and confusion around wages. For 24-hour production companies it has also meant that two shifts of workers are entitled to a day off in lieu instead of one shift. Although this may be good for workers for some companies it means closing down from midnight to midnight to avoid having to compensate all of the workers of two different shifts by giving them a day in lieu. We know this is the case for both Heinz-Wattie in Hastings and Unilever in Petone. Therefore in practice it turns out to be not so good for workers after all. 
The Maori Party is happy to support this bill but we consider that the costs of time delay and uncertainty need to be addressed immediately. We are pleased to lend our votes to give effect to this. 
Dr WAYNE MAPP (National—North Shore) 
: 
 National is supporting the Holidays (Transfer of Public Holidays) Amendment Bill. It is an irony that on the last day of Parliament in theory we are debating a bill that everyone has agreed on and yet this is the third amendment of the Holidays Act since it was enacted in 2003. We on this side of the House have been saying to the Government for some time now that this legislation should be properly reviewed and that there would obviously have to be a collaborative arrangement involving both employers and unions to get legislation that would be actually workable. 
What this amendment and previous amendments have shown and indeed what previous speeches have shown is that the Act developed by the Labour Government has not actually worked in practice. The irony is that the Labour Government was intending to simplify the Holidays Act. All I can say is that I have never seen so many amendments to what was supposed to be simplified legislation in employment law. This shows a Government that has frankly created a mess and we are having to fix that mess yet again—a third time in just 4 years. The legislation is simply deficient. Interestingly enough Mr Peter Brown noted that point as well in his speech. 
The irony of it also is that we have established at great expense a Supreme Court that ended up saying employers and employees could not even agree to have a common-sense arrangement. We have spent millions and millions of dollars establishing that court and it could not using its judicial power come up with a common-sense solution. It took very much a black-letter law approach to the legislation and we are being required to fix it here. I would have hoped that a court of that nature would be able to allow a bit more flexibility; that is after all one of the values of a court like the Supreme Court. No the legislation has come back here. 
It is National’s intent to fix these problems in the Holidays Act once and for all. We are committed should we be in Government to having a proper review. We will take into account the views both of employers and of unions because the legislation has to work for everyone concerned. People—both employers and employees—need to have certainty and the legislation has to be reasonably simple in application. The whole problem of this legislation which has been pointed out time and time again to the Government is that it is simply too complicated and Government has been unwilling to deal with the issues. Instead we get these piecemeal ad hoc amendments to cover up the mistakes. 
I know that Mr Mallard said there was a certain level of consensus around employment law; actually in some respects he is right. That certainly does not mean that the Government got much of it right. In fact in the Holidays Act it has got much of it wrong. The Labour Government does not understand—indeed it has never understood—the need for flexibility. That is why we would say—[ 
Interruption 
] 
The ASSISTANT SPEAKER (Hon Marian Hobbs) 
: I say to members that the debate is widening. Could we bring it back a little bit and then we might not have quite the amount of noise. 
Dr WAYNE MAPP 
: Surely on the last day you would want a certain level of interchange in the House— 
The ASSISTANT SPEAKER (Hon Marian Hobbs) 
: Oh dear me no! 
Dr WAYNE MAPP 
: National is supporting the bill. We are recording our disappointment that we have to do yet again another fix-up job on botched legislation. The fact that this Government—on the last day—has to come back to Parliament to say we will do another fix-up job is completely reflective of its whole approach over the last 9 years. The Government has struggled with the concept of governing and it has struggled with the ability to have clear and understandable law. New Zealanders are looking forward to a better change in the future and in 6 to 8 weeks we will know the results. 
Bill read a second time. 
In Committee 
TIM BARNETT (Senior Whip—Labour) 
: 
 I seek leave for this bill to be taken as one question in its Committee stage. 
The CHAIRPERSON (H V Ross Robertson) 
: Is there any objection to that course of action being taken? There is none. 
Clauses 1 to 8 
KATE WILKINSON (National) 
: 
 It is a delight to spend the last day of this parliamentary term in urgency speaking at 9.30 on a Friday morning about an amendment to the Holidays Act which should have been fixed up many many years ago in relation to whether employers and employees can agree to transfer a public holiday. I would like the Minister in the chair Trevor Mallard to take a couple of calls to answer some queries. 
I note that in 2004 the report  
Working Group Report on unintended consequences of the Holidays Act 2003 
 was released and I shall quote from that report: “Some employers questioned when a public holiday is deemed to start for the purposes of the Act. They noted that in some cases a shift pattern will ‘straddle’ a public holiday in the sense that the shift covers parts of two days one of which is a public holiday. In these cases employers need to know when the public holiday is deemed to start for the purposes of the Act particularly when the employer intends to stop production at the start of a public holiday to avoid the requirement to pay employees one and a half times their [relevant daily pay]. … This issue turns on the interpretation of ‘a day’ which is not defined in the Act but is referred to in section 12(4). … It was suggested that there is nothing in the Act to stop an employee and an employer from agreeing on the time that they deem a public holiday to start.” 
That was 4 years ago. The issue of a public holiday being straddled was raised then. It has taken 4 years for us to have this amendment which addresses that issue. I would really like the Minister to explain why it has taken 4 years for the Government to try to fix this very—[ 
Interruption 
] The Minister will get his turn. He is not allowed to barrack from that chair. I ask the Minister to explain what exactly this Government has been doing in relation to making the holidays legislation certain so that both employees and employers can understand it. 
The other issue is that this amendment is very very narrow. Some submitters queried why the ability to transfer those entitlements should apply only to shift workers and why it could not apply to any employees. I would like the Minister to explain the anomaly—why the provision applies just to shift workers. Will we have to wait for the next Supreme Court decision before we expand the provision to include all employees? 
Bearing in mind that there were no objections to the bill I just mention that one of the submitters suggested that the bill should go further and ensure that all employers and employees have the flexibility to transfer the observance of and entitlements that arise from a public holiday from a day listed in the Act for reasons of cultural or personal significance or for reason of convenience. I think prior speakers have already raised that issue. If employers and employees can agree that part of a day is a public holiday why cannot they agree that a whole day can be deemed a public holiday and make their choice? 
National will support the bill in the Committee stage. I know there are other important matters that members of the House want to attend to rather than debating this technical amendment to the Holidays Act 2003. That we are debating it now is due to 4 years of idleness on the part of the Government 4 years of ignoring the suggestion of the 2004 working group report which specifically mentioned the issue of shift patterns straddling public holidays. That was 4 years ago. Nothing has been done since then. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I must confess that I was waiting for the Minister in the chair the Hon Trevor Mallard to answer— 
Hon Trevor Mallard 
: I’m waiting to hear a substantive thing to comment on. 
Dr WAYNE MAPP 
: The previous speaker Kate Wilkinson did raise substantive questions and therefore I will ask the Minister to comment—the questions were quite legitimate. Those questions related to why the working party report was not properly implemented and why we are now dealing with quite a narrow approach relating only to shift work. By making those sorts of narrow technical amendments—and no one is in dispute about them—we certainly fix a particular problem. No one is doubting that. This particular problem relating to shift work has been fixed. Everyone has agreed on that and that comes directly from the Supreme Court decision which is as the Minister noted earlier only about a year old. 
However that is not really the question my colleague asked. She asked about the other issues. What mechanisms does the Government have in place to fix the other issues that will arise or is the pattern going to be that we will have these little amendment bills to fix up each individual problem as it arises? There has been a consistent call as the Minister knows to have a more comprehensive review of the Holidays Act so that the range of problems that have been identified on a number of occasions—I have been on the Transport and Industrial Relations Committee in the past—will be fixed. Obviously in the nature of that discussion there would be a bit of to-ing and fro-ing between employer and employee. We understand that and obviously we would not want to return to ordinary daily pay as was proposed by some people. That would be far too restrictive but conversely— 
Hon Trevor Mallard 
: That’s what Kate Wilkinson has been promoting. 
Dr WAYNE MAPP 
: —National does not propose that approach—we say that relevant daily pay has its own set of problems. 
One would think this would be an important opportunity to establish a working party to resolve those kinds of issues and others so that we get a more comprehensive approach to the problem rather than this particular approach. The Minister owes it to the Committee to answer the questions raised by Kate Wilkinson. I do not think I need to take up any more time on that point but I do ask the Minister to comment. 
Hon TREVOR MALLARD (Minister of Labour) 
: 
 I thank the member and make it clear to Dr Mapp that all I was doing was waiting to see whether there was a more substantive list of issues for me to address because the issues raised should not take too long to deal with. 
The member Kate Wilkinson was right when she indicated that the issue was raised in 2004 but if she had continued to read the report she would have seen that when the issue was raised in 2004 in the Heinz-Wattie case it was not regarded as a problem. The legal understanding at the time was that the employer and employees could make an agreement around that particular shift work issue and in fact all of us and the people who have been involved in this area for quite a long time thought that was the situation. I am sure that Kate Wilkinson as someone who is versed in industrial law probably thought that was the case at the time. Unfortunately in November last year in the Air Line Pilots’ Association and Air New Zealand case the Supreme Court gave a ruling that was not asked for by anybody and it did upset people’s understanding of the law in that particular area. 
There was a more general question about the calculation of holiday pay and it is fair to say that up until a year or 18 months ago making holiday pay calculations was something that businesses especially small and medium sized businesses had some problems with. As a result of that my very good predecessor Ruth Dyson did some work on the issue and it has resulted in a very good holiday pay calculator now sitting on the Department of Labour website. That calculator is extensively used and it has been praised by the Small Business Advisory Group as well as by a number of individual small employers. The ability to work out those calculations is now much easier than it had been. It is a complex area but there is a good computer programme which is easy to feed data into and which takes employers and employees through the process step by step. So that issue has not been raised with me over the last 6 months or so as being a practical problem for employers. 
Then I think we got to a broader issue which is that if employees are allowed to transfer a couple of hours of a public holiday why cannot they transfer it all? I am sorely tempted Madam Assistant Chairperson—but I am sure you will not let me—to broaden the debate quite extensively— 
The CHAIRPERSON (Hon Marian Hobbs) 
: No. 
Hon TREVOR MALLARD 
: —on to the general question of transfer. I will not do that but what I will do in response to the point made by Kate Wilkinson is to say there is a fundamental difference of opinion between the Labour Party and the National Party on this particular range of areas. The Labour Party is of the view that holidays are not for sale and that there should be a balance in the relationship between employers and employees. Especially for people who are in marginal employment situations—people who do not have a lot of power in the workplace—our view is that having employment rights set out in statutes and codes is the proper way of achieving that balance. 
That is why we are not prepared to entertain that member’s suggestion that people should be able to give away their Christmas Day give away their Good Friday or as that member suggested earlier— 
The CHAIRPERSON (Hon Marian Hobbs) 
: Yes I know but let us contain it. 
Hon TREVOR MALLARD 
: I think it was fair for the member to raise that issue. I did not take a point of order about that. The issue might have been marginal to this bill but it is important. The reason we disagree with National is the same reason that we disagree with the proposal of the National Party to cut back the entitlement to holidays—to take it back to 3 weeks. We know what would happen. We know that employers would put pressure on employees— 
Kate Wilkinson 
: I raise a point of order Madam Chairperson. I think the Minister is straying from the topic at hand quite considerably. If he wants to give an electioneering speech on workplace practice— 
The CHAIRPERSON (Hon Marian Hobbs) 
: The point is taken. Do not add to it; do not exacerbate the situation please. Has the Minister finished speaking? 
Hon TREVOR MALLARD 
: Not at all. 
The CHAIRPERSON (Hon Marian Hobbs) 
: What a shame! Would the Minister resume the call and please remain close to the subject of the debate. 
Hon TREVOR MALLARD 
: Sure. The debate is as defined by Kate Wilkinson about whether we should be allowed to transfer holidays to other days. Labour says in a very specific instance—in this case where there is a straddling of the holiday by shift work—then yes that is acceptable. But generally we do not believe that employees should be made to give away their holidays which is the National Party’s policy. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 8 be agreed to: 
to omit from the example in section 44A “would” and substitute “could”. 
Amendment agreed to. 
Clauses 1 to 8 as amended agreed to. 
Bill reported with amendment. 
Report adopted. 
Third Reading 
Hon TREVOR MALLARD (Minister of Labour) 
: 
 I move  
That the Holidays (Transfer of Public Holidays) Amendment Bill be now read a third time 
. I congratulate you Mr Assistant Speaker on your productivity. You have been coming in and out of the Chamber in various roles such as Assistant Speaker and Chairperson and we have made amazing progress while you have been away. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I thank the member. 
Hon TREVOR MALLARD 
: Oh you are going again! I did not know I had that effect on you Mr Assistant Speaker. 
This is a simple wee bill. It fixes up a decision that the Supreme Court made—a decision that it had not been invited to make by any of the parties and a decision that really made a nonsense out of any practical application of the law. I am a supporter of the Supreme Court but in this particular case I think it is fair to say that it made a mess of things. 
This Parliament has unanimously agreed with the support of the Council of Trade Unions and Business New Zealand to remedy the mess the court has made. We have had a little bit of fun in the Committee stage because an invitation was made by the National Party to have a broader discussion about the transferability of public holidays and of course that raised the question of the sale of holidays generally. It has been made very clear that there are some issues around holidays and I am absolutely determined to have a more general piece of amending legislation in the next Parliament. It will be something that is wider and something that I hope will not be unanimous because I know that if I do something substantive the National Party will not agree with it. 
We had a bit of a discussion around whether workers should be forced to give up their fourth week’s holiday as the National Party has proposed. It is a debate that I am sure we will have quite a lot of over the next 6½ weeks. I am sure that every time it is brought up we will get a few more votes because no one out there who is reasonable would think that the public holiday provisions and the paid holiday provisions in New Zealand are too generous. It is at the lower end of the OECD scale and lower than most other countries apart from the US. Part of the reason we are relatively lowly paid compared with the United Kingdom Australia and some other like countries is that our holiday arrangements are not as generous as those of some other countries. 
As I say there was remarkable unanimity around passing this legislation quickly but what the bill did was to focus on some very big issues. I will be particularly interested in the response of my old friend and colleague Dr Sharples in this area because this is one of the defining issues. Frankly if one is looking for an ethnic group that gains the most out of having proper holiday pay arrangements one will find that it is Maori because they are most likely to be amongst the disadvantaged group. I would be interested in the Maori Party’s reaction to the National Party’s suggestion that the number of public holidays should be reduced. Thank you very much. 
KATE WILKINSON (National) 
: 
 As I stated earlier National is supporting the third reading of the Holidays (Transfer of Public Holidays) Amendment Bill. As the Minister of Labour has correctly stated it is really a technical amendment to the Holidays Act 2003. 
The Minister was a wee bit misleading in his comments about forcing people to transfer holidays or employers being able to take holidays away. I do not think that the National Party or anybody else wants to take away people’s holidays. The overall purpose of the Holidays Act which we applaud is “to promote balance between work and other aspects of employees’ lives …”. But the National Party trusts New Zealanders to sometimes make the right decisions for themselves. 
This bill is very narrow. It covers just the situation where a shift straddles a public holiday. Its drafting is a result of the Supreme Court decision in the  
New Zealand Airline Pilots’ Association Industrial Union of Workers Inc. v Air New Zealand Ltd  
case. If we look back in history we see that the way in which some of these issues evolve is really interesting. The justices in that Supreme Court case stated: “Parliament can hardly have intended to create this potential for confusion and disputes.” I think that is quite a strong statement from the justices. It is interesting to note that way back in 2003 before that decision the Labour Government boasted that the holidays legislation would provide “certainty clarity and consistency”. It was very very confident that its holidays legislation would provide certainty clarity and consistency yet here we are several years and three amendments later trying to fix up and clarify legislation that did not provide certainty clarity or consistency. 
In 2003 the then Minister of Labour actually admitted that “the current Holidays Act is an extremely difficult piece of legislation to apply and to interpret.” She stated: “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.” That was back in 2003 and here we are in 2008 as a result of a judicial decision trying to provide some clarity in legislation that the Minister at the time boasted would cure all ills. 
Actually this is the third amendment to the holidays legislation since the original Act came into force in April 2004. Less than 6 months after that there was a further amendment because the Labour Government had got it wrong; Peter Brown from New Zealand First mentioned that this morning. In fact in 2004 he stated that his party “got it wrong by quite some.” So here we are in 2008 on the last day of Parliament and in urgency trying to fix up what the Government got wrong. Back then in 2004 New Zealand First actually went further and said that “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.” Well it is still a mess. We fixed up a tiny little area of it that they got wrong “by quite some”—an area that needed clarification—and that unfortunately went to the highest court in the land. But at least it is fixed hopefully with this small amendment. 
When we look back in history at the transferring of public holidays—which allows an employee to observe a public holiday on another day—we see that it is not a new concept. Apparently it was first used legislatively in the Public Holidays Act 1910 and even before that in 1908 the Factories Act provided that persons employed when Christmas Day for example fell on a Sunday could observe the holiday on the following Monday. Later in 1955 the Public Holidays Act had the effect of transferring public holidays to other days when they fell on Saturdays or Sundays. So as this Supreme Court decision stated since at least 1910 employment legislation has been familiar with the concept of public holidays being observed on days other than the calendar days on which the holiday actually falls. 
The predecessor to this Act the Holidays Act 1981 also provided that public holidays could be varied by agreement as long as they were not reduced in number. Indeed the original explanatory note of the holidays legislation in 2003 actually contemplated that and said that the bill gives employers and employees the flexibility to agree to observe alternative days as public holidays. That was back in 2002. Something happened in between and the bill that came out of the select committee morphed into the Act we now have which has been fixed up three times because of the lack of clarity. 
Back in May last year there was an article in  
Employment Today 
 by an employment specialist which quite aptly stated: “Rather than simplify the law relating to holidays the Holidays Act 2003 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 …”. How right that is. Now this narrow amendment is trying as a result of a Supreme Court decision to add some clarity to a very very narrow interpretation of the definition of “public holiday”. 
National is supporting this bill. It only goes so far. It does not deal with the possibility of transferring an entire public holiday to the next day or another day; it only deals with the matter of where a shift straddles a public holiday. Also it applies only to shift workers and not to other employees. There is scope for a good look at the holidays legislation. The legislation has to be certain. Employees have to understand it and employers have to understand it. A review of the holidays legislation does not mean taking away holiday rights; it means providing legislation that is clear and certain and does not add to confusion. National supports this bill under urgency at its third reading. 
Bill read a third time.