Holidays Amendment Act 2010

1: Title
This Act is the Holidays Amendment Act 2010.
2: Commencement
1: Section 7(2) Schedule 1 section 29
2: The rest of this Act comes into force on 1 April 2011.
3: Principal Act amended
This Act amends the Holidays Act 2003 2010-11-27 Holidays Act 2003 Section 7(2) and Schedule 1 as far as it relates to section 29 of the principal Act 2011-04-01 Holidays Act 2003 The rest of this Act. (Section 7(2) and Schedule 1 as far as it relates to section 29 of the principal Act have already been done)
1: Amendments to principal Act
4: Interpretation
1: Section 5(1) average daily pay section 9A(2) closedown period discretionary payment
a: means a payment that the employer is not bound, by the employee’s employment agreement, to pay the employee; but
b: does not include a payment that the employer is bound, by the employee's employment agreement, to pay the employee, even though—
i: the amount to be paid is not specified in that employment agreement and the employer may determine the amount to be paid; or
ii: the employer is required under that employment agreement to make the payment only if certain conditions are met .
2: Section 5(1) public holiday public holiday
a: means a day specified in section 44(1); and
b: if there is a written agreement under section 44A or 44B
i: includes a calendar day or period of 24 hours agreed to be treated as a public holiday; but
ii: excludes the day (or part of a day) specified in section 44(1) agreed not to be treated as a public holiday .
5: New sections 9 and 9A substituted
Section 9
9: Meaning of relevant daily pay
1: In this Act, unless the context otherwise requires, relevant daily pay
a: means the amount of pay that the employee would have received had the employee worked on the day concerned; and
b: includes—
i: productivity or incentive-based payments (including commission) if those payments would have otherwise been received had the employee worked on the day concerned:
ii: payments for overtime if those payments would have otherwise been received had the employee worked on the day concerned:
iii: the cash value of any board or lodgings provided by the employer to the employee; but
c: excludes any payment of any employer contribution to a superannuation scheme for the benefit of the employee.
2: However, an employment agreement may specify a special rate of relevant daily pay for the purpose of calculating payment for a public holiday, an alternative holiday, sick leave, or bereavement leave if the rate is equal to, or greater than, the rate that would otherwise be calculated under subsection (1)
3: To avoid doubt, if subsection (1)(a)
9A: Average daily pay
1: An employer may use an employee's average daily pay for the purposes of calculating payment for a public holiday, an alternative holiday, sick leave, or bereavement leave if—
a: it is not possible or practicable to determine an employee's relevant daily pay under section 9(1)
b: the employee's daily pay varies within the pay period when the holiday or leave falls.
2: The employee's average daily pay must be calculated in accordance with the following formula: a b where— a is the employee's gross earnings for the 52 calendar weeks before the end of the pay period immediately before the calculation is made b is the number of whole or part days during which the employee earned those gross earnings, including any day on which the employee was on a paid holiday or paid leave; but excluding any other day on which the employee did not actually work.
3: To avoid doubt, if subsection (2)
6: New section 11 substituted
Section 11
11: Labour Inspector may determine ordinary weekly pay, relevant daily pay, and average daily pay
1: This section applies if an employer and employee cannot agree on the amount of the employee's—
a: ordinary weekly pay under section 8; or
b: relevant daily pay under section 9
c: average daily pay under section 9A
2: A Labour Inspector may determine the amount of the employee's ordinary weekly pay, relevant daily pay, or average daily pay (as the case may be).
3: In making a determination, a Labour Inspector must apply the provisions of section 8, 9 9A
7: Determination of what would otherwise be working day
1: Section 12(3)
d: whether, but for the day being a public holiday, an alternative holiday, or a day on which the employee was on sick leave or bereavement leave, the employee would have worked on the day concerned.
2: Section 12
3A: If the public holiday, alternative holiday, or day on which the employee was on sick leave or bereavement leave falls during a closedown period, the factors listed in subsection (3) must be taken into account as if the closedown period were not in effect.
8: Meaning of gross earnings
1: Section 14(a)(ii) (except non-taxable payments to reimburse the employee for any actual costs incurred by the employee related to his or her employment) allowances
2: Section 14(c)
iv: any payment made in accordance with section 28B
9: Purpose of this subpart
Section 15
15: Purpose of this subpart
The purpose of this subpart is to—
a: provide all employees with a minimum of 4 weeks’ annual holidays to be paid at the time the holidays are taken; and
b: enable an employee to request that up to 1 week of his or her annual holidays entitlement be paid out; and
c: require employers to pay employees at the end of their employment for annual holidays not taken or paid out; and
d: enable employers to manage their businesses, taking into account the annual holiday entitlements of their employees.
10: New heading and sections 28A to 28F inserted
The following heading and sections are inserted after section 28 Portion of annual holidays may be paid out
28A: Employee may request portion of annual holidays be paid out
1: An employee may request that his or her employer pay out a portion of the employee's entitlement to annual holidays.
2: A request under subsection (1)
a: must be in writing; and
b: may be made on 1 or more separate occasions until a maximum of 1 week of the employee's annual holidays is paid out in each entitlement year.
3: If an employee makes a request under subsection (1)
a: consider the request within a reasonable time; and
b: advise the employee in writing as to whether the employer agrees to the request; and
c: if the employer agrees to the request, comply with section 28B
4: An employer—
a: may decline an employee's request; and
b: is not required to provide the employee with a reason for declining the request.
5: In this section, entitlement year
a: means a period of 12 months continuous employment beginning on the anniversary of the employee's employment; and
b: includes a period of 12 months continuous employment described in section 16(2).
28B: Payment for annual holidays paid out
1: If an employer agrees to pay out a portion of the employee's annual holidays under section 28A(3)(c)
a: in accordance with section 21(2); and
b: as soon as practicable after the employer has agreed to the employee's request under that provision.
2: If an employer has incorrectly paid out a portion of the employee's annual holidays where the employee did not make a request for the payment, the employee's entitlement to take the portion of annual holidays concerned remains in force as if the payment had not been made.
28C: Requirement to request payout prohibited
1: A requirement that an employee must make a request under section 28A
2: Despite subsection (1) section 28A
28D: Requirement to make payout prohibited
A requirement for an employer to pay out a portion of an employee's entitlement to annual holidays must not be—
a: a term or condition of the employee's employment (whether contained in a written employment agreement or otherwise); or
b: raised in negotiations between the employer and employee about the employee's terms and conditions relating to salary or wages.
28E: Employer may have policy preventing payout
1: An employer may adopt a policy that allows the employer to not consider a request under section 28A
2: A policy under subsection (1)
a: the whole of the employer’s business; or
b: some parts of the employer's business but not to others.
3: If an employer has a policy under subsection (1) section 28A
28F: Labour Inspector may determine payout
1: This section applies if an employer has agreed to an employee's request to pay out a portion of the employee's annual holidays under section 28A
a: the portion of annual holidays that are to be, or have been, paid out; or
b: the amount that the employer is required to pay the employee for the annual holidays that are to be, or have been, paid out.
2: A Labour Inspector may determine either or both of the following:
a: the portion of annual holidays paid out or to be paid out:
b: the amount payable for the annual holidays paid out or to be paid out.
11: Purpose of this subpart
Section 43
b: to provide for the transfer of public holidays (whether in whole or in part): .
12: New sections 44A to 44C substituted
Section 44A
44A: Transferring part of public holiday
1: This section applies if—
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: If the criterion in subsection (3)
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
b: that,—
i: if the agreement relates to only 1 day specified in 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
B: includes the period from when the employee is to start work to when the employee is to finish work:
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—
A: is to start or finish during the days specified in section 44(1); and
B: includes the period from when the employee is to start work to when the employee is to finish work.
3: The criterion is that the purpose of the transfer is not to avoid the employee's entitlements under sections 50 and 56 for working on a public holiday, although the transfer may have that effect.
4: Where an agreement to transfer part of a public holiday applies, the employee’s entitlements under sections 50 and 56 apply only if the employee works during the period of 24 hours or 2 separate periods of 24 hours (as the case may be) to which that part of the public holiday has been transferred.
5: To avoid doubt, an agreement under this section must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year. 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 midnight on Anzac Day as not part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. Just when the 24-hour period starts before or finishes after a work period is a matter for the parties to agree on. For instance, they could agree that it runs from midday on 24 April to midday on Anzac Day.
44B: Transferring whole of public holiday
1: An employer and employee may agree in writing (whether in an employment agreement or otherwise)—
a: that a public holiday specified in section 44(1) is to be observed by the employee on another calendar day or during a period of 24 hours (a transfer subsection (2)
b: the calendar day or period of 24 hours to which the public holiday is transferred is to be treated as the employee's public holiday for the purposes of this subpart.
2: The criteria are that—
a: the public holiday specified in section 44(1) to be transferred—
i: is identified; and
ii: would otherwise be a working day for the employee; and
b: the calendar day or period of 24 hours to which the public holiday is to be transferred—
i: is identified or identifiable; and
ii: would otherwise be a working day for the employee; and
iii: is not another public holiday or part of a public holiday; and
c: the purpose of the transfer is not to avoid the employee’s entitlements under sections 50 and 56 for working on a public holiday, although the transfer may have that effect.
3: Where an agreement to transfer a public holiday applies, the employee’s entitlements under sections 50 and 56 apply only if the employee works on the identified or identifiable calendar day or period of 24 hours to which the public holiday has been transferred.
4: To avoid doubt, an agreement under this section—
a: may be made in relation to 1 or more of the public holidays specified in section 44(1); but
b: must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year.
44C: Employer may have policy preventing transfer
1: An employer may adopt a policy that allows the employer to not enter into agreements that enable all or part of a public holiday being transferred under section 44A 44B
2: A policy under subsection (1)
a: the whole of the employer’s business; or
b: some parts of the employer's business but not to others.
3: If an employer adopts a policy under subsection (1) sections 44A and 44B
13: Requirements for alternative holiday
1: Section 57(1) ; and
d: not be taken on a public holiday.
2: Section 57
2: If an employer and employee cannot agree under subsection (1)(a) on when an alternative holiday is to be taken, the day must be taken on a date determined, on a reasonable basis, by the employer.
3: If subsection (2)
14: Proof of sickness or injury
1: Section 68
1A: Despite subsection (1), the employer may require proof of sickness or injury within 3 consecutive calendar days if the employer—
a: informs the employee as early as possible that the proof is required; and
b: agrees to meet the employee's reasonable expenses in obtaining the proof.
2: Section 68(3) (within the meaning of the Medical Practitioners Act 1995)
3: Section 68
5: In this section, medical practitioner
15: Penalty for non-compliance
1: Section 75(1)(a) $5,000 $10,000
2: Section 75(1)(b) $10,000 $20,000
3: Section 75(2)
ba: sections 28A and 28B .
16: Holiday and leave record
1: Section 81(2)
ha: the portion of any annual holidays that have been paid out in each entitlement year (if applicable):
hb: the date and amount of payment, in each entitlement year, for any annual holidays paid out under section 28B .
2: Section 81(2)
ja: the day or part of any public holiday specified in section 44(1) agreed to be transferred under section 44A or 44B .
17: Consequential amendments to principal Act
The principal Act Schedule 1
2: Amendments to other Acts and transitional provision
18: Amendments to other Acts
The Acts listed in Schedule 2 2011-04-01 Employment Relations Act 2000 Parental Leave and Employment Protection Act 1987
19: Transitional provision
To avoid doubt, a request under section 28A section 10