Holidays Amendment Act 2016

1: Title
This Act is the Holidays Amendment Act 2016.
2: Commencement
This Act comes into force on 1 April 2016
3: Principal Act
This Act Holidays Act 2003 principal Act 2016-04-01 Holidays Act 2003
4: New section 5A inserted (Provisions affecting application of amendments to this Act)
After section 5
5A: Provisions affecting application of amendments to this Act
Schedule 1AA
5: Section 75 amended (Penalty for non-compliance)
1: In section 75(1) subsection (2) , and every person who is involved in the failure to comply,
2: Replace section 75(2)﻿(e)
e: section 81 (which relates to an employer’s obligation to keep a holiday and leave record):
f: section 82 (which relates to requests for access to a holiday and leave record).
3: After section 75(2)
3: For the purposes of subsection (1), a person is involved in a failure to comply section 142W
6: Section 76 amended (Proceedings by Labour Inspector for penalty)
1: In the heading to section 76 Labour Inspector or employee concerned
2: In section 76(1) is the only person and the employee concerned are the only persons
3: After section 76(1)
1A: However, only a Labour Inspector may bring an action in the Authority against a person involved in a failure to comply in order to recover a penalty under section 75.
4: In section 76(5) Labour Inspector or employee concerned
5: After section 76(5)
5A: Despite subsection (5), if a court refuses to make a pecuniary penalty order under section 142E Employment Relations Act 2000
7: New sections 76A and 76B inserted
After section 76
76A: Matters Authority to have regard to in determining amount of penalty
In determining an appropriate penalty under section 76, the Authority or the court (as the case may be) must have regard to all relevant matters, including—
a: the purpose stated in section 3 and, to the extent relevant, the object stated in section 3 of the Employment Relations Act 2000; and
b: the matters referred to in section 133A(b) to (g)
76B: Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court Section 7 new section 76B amended 1 March 2017 section 261 District Court Act 2016
8: New section 77A inserted (Proceedings by Labour Inspector or employee to recover arrears of pay from person involved in failure to comply)
After section 77
77A: Proceedings by Labour Inspector or employee to recover arrears of pay from person involved in failure to comply
1: A Labour Inspector or an employee may recover from a person who is not the employee’s employer any unpaid holiday pay or leave pay that the employee is entitled to if—
a: the employee is entitled to unpaid holiday pay or leave pay under this Act; and
b: the holiday pay or leave pay is unpaid due to non-compliance with this Act; and
c: the person from whom the pay is sought to be recovered is a person involved in the non-compliance.
2: However, unpaid holiday pay or leave pay may be recovered under subsection (1)
a: in the case of recovery by an employee, with the prior leave of the Authority or court; and
b: to the extent that the employee’s employer is unable to pay the holiday pay or leave pay.
3: For the purposes of subsection (1) involved in the non-compliance section 142W
9: Section 81 amended (Holiday and leave record)
1: Repeal section 81(1)
2: In section 81(2) The holiday and leave record must contain the following information for each employee: An employer must at all times keep a holiday and leave record showing, in the case of each employee employed by the employer, the following information:
3: Replace section 81(2)﻿(c)
c: the number of hours worked each day in a pay period and the pay for those hours:
4: After section 81(3)
3A: If an employee’s number of hours worked each day in a pay period and the pay for those hours are agreed and the employee works those hours (the usual hours
a: the employee’s wages and time record kept under section 130 of the Employment Relations Act 2000; or
b: the employee’s employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
3B: In subsection (3A) usual hours
3C: Despite subsection (3B) section 4B(1)
10: New Schedule 1AA inserted
After section 91 Schedule 1AA Schedule