Holidays Act 2003

en-NZ · official · sha256:f52b1e3d468ccdaf6750e694d55db225b834f4c95f177bcde80e116b31eefd67

14 Meaning of gross earnings In this Act, unless the context otherwise requires, gross earnings, in relation to an employee for the period during which the earnings are being assessed,— (a) means all payments that the employer is required to pay to the employee under the employee’s employment agreement, including, for example— (i) salary or wages: (ii) allowances (except non-taxable payments to reimburse the employee for any actual costs incurred by the employee related to his or her employment): (iii) payment for an annual holiday, a public holiday, an alternative holiday, sick leave, bereavement leave, or family violence leave taken by the employee during the period: (iv) productivity or incentive-based payments (including commission): (v) payments for overtime: (vi) the cash value of any board or lodgings provided by the employer as agreed or determined under section 10: (vii) first week compensation payable by the employer under section 97 of the Accident Compensation Act 2001 or former Act; but (b) excludes any payments that the employer is not bound, by the terms of the employee’s employment agreement, to pay the employee, for example— (i) any discretionary payments: (ii) any weekly compensation payable under the Accident Compensa‐ tion Act 2001 or former Act: (iii) any payment for absence from work while the employee is on vol‐ unteers leave within the meaning of the Volunteers Employment Protection Act 1973; and (c) also excludes— (i) any payment to reimburse the employee for any actual costs incur‐ red by the employee related to his or her employment: (ii) any payment of a reasonably assessed amount to reimburse the employee for any costs incurred by the employee related to his or her employment: (iii) any payment of any employer contribution to a superannuation scheme for the benefit of the employee: (iv) any payment made in accordance with section 28B.

Referencing norms: AweWindowEarning

en-NZ · official · sha256:cfe992571f23535e692d03fcf80a412fa31c30f05d5a17dc3a52e277fa38fdf4

16 Entitlement to annual holidays (1) After the end of each completed 12 months of continuous employment, an employee is entitled to not less than 4 weeks’ paid annual holidays. (2) For the purposes of subsection (1), the 12 months of continuous employment— (a) includes any period during which the employee was— (i) on paid holidays or leave under this Act (for example, family vio‐ lence leave); or (ii) on parental leave under the Parental Leave and Employment Pro‐ tection Act 1987; or (iii) on volunteers leave within the meaning of the Volunteers Employ‐ ment Protection Act 1973; or (iv) receiving weekly compensation under the Accident Compensation Act 2001 or former Act as well as, or instead of, payment from the employer; or (v) on unpaid sick leave or unpaid bereavement leave or unpaid fam‐ ily violence leave; or (vi) on unpaid leave for any other reason for a period of no more than 1 week; but (b) unless otherwise agreed, does not include any other unpaid leave, being leave other than that referred to in paragraph (a)(v) and (vi). (3) If, for the purposes of subsection (2)(b), an employer and employee agree that any period of unpaid leave of more than 1 week is to be included in the employee’s 12 months of continuous employment, the divisor of 52 to be used for the purposes of calculating the employee’s average weekly earnings must be reduced by the number of whole or part weeks greater than 1 week that the employee was on the unpaid leave. (4) An employee’s entitlement to annual holidays remains in force until the employee has— (a) taken all of the entitlement as paid holidays; or (b) been paid out under section 28B for the entitlement in the entitlement year.

Referencing norms: EntitledToAnnualHolidays

en-NZ · official · sha256:3991732095ba0a862b6f0445bdb58a446c8af19d00e0e9fb60b031cf676d0d9e

21 Calculation of annual holiday pay (1) If an employee takes an annual holiday after the employee’s entitlement to the holiday has arisen, the employer must calculate the employee’s annual holiday pay in accordance with subsection (2). (2) Annual holiday pay must be— (a) for the agreed portion of the annual holidays entitlement; and (b) at a rate that is based on the greater of— (i) the employee’s ordinary weekly pay as at the beginning of the annual holiday; or (ii) the employee’s average weekly earnings for the 12 months imme‐ diately before the end of the last pay period before the annual holiday.

Referencing norms: AnnualHolidayPay, AweGrossEarnings, AweWindowByPayPeriodEnd, AweWindowByPayPeriodStart, CalculateAnnualHolidayPay, CalculateAnnualHolidayPayDuty, PayPeriodsEndingWithinTwelveMonths, RateIsAverageWeeklyEarnings, RateIsOrdinaryWeeklyPay, WholePayPeriodsWithinTwelveMonths

en-NZ · official · sha256:aa8cd8a1206052555d2d62c0c1968fe7b6629f8329ae4d68c362c23f2acc6e34

24 Calculation of annual holiday pay if employment ends and entitlement to holidays has arisen (1) Subsection (2) applies if— (a) the employment of an employee comes to an end; and (b) the employee is entitled to annual holidays; and (c) the employee has not taken annual holidays or has taken only some of them. (2) An employer must pay the employee for the portion of the annual holidays entitlement not taken at a rate that is based on the greater of— (a) the employee’s ordinary weekly pay as at the date of the end of the employee’s employment; or (b) the employee’s average weekly earnings during the 12 months immedi‐ ately before the end of the last pay period before the end of the employ‐ ee’s employment.

Referencing norms: TerminationPaymentForUntakenHolidays, employment_ends_with_entitlement_arisen, untaken_holiday_portion_at_termination

en-NZ · official · sha256:257ee49b4e5429260cec56f895c53865a11789a6d78e5b61161541cf47dd8c9a

25 Calculation of annual holiday pay if employment ends before further entitlement has arisen (1) Subsection (2) applies if— (a) the employment of an employee comes to an end; and (b) the employee is not entitled to annual holidays for a second or subse‐ quent 12-month period of employment because the employee has not worked for the whole of the second or subsequent 12 months for the pur‐ poses of section 16. (2) An employer must pay the employee 8% of the employee’s gross earnings since the employee last became entitled to the annual holidays, less any amount— (a) paid to the employee for annual holidays taken in advance; or (b) paid in accordance with section 28.

Referencing norms: TerminationPaymentBeforeFurtherEntitlement, amount_paid_for_holidays_taken_in_advance, amount_paid_under_section_28, employment_ends_before_further_entitlement, gross_earnings_since_last_entitlement

en-NZ · official · sha256:c6dffe87174a46058de2c33c5dc28fd996fd4eaa0bdeb1084cd6bb19aeb2ca4a

26 Payments may be cumulative To avoid doubt,— (a) gross earnings for the purposes of section 25(2) includes any payments under section 24(2); and (b) an employee may be entitled to payments for annual holidays under both section 24 and section 25.

en-NZ · official · sha256:dd1474d95004bdd4919e6bf19a67e127e13e43e8f990a6e9879290093b72b99b

5 Interpretation (1) In this Act, unless the context otherwise requires,— annual holiday means an annual holiday provided under subpart 1 of Part 2 authorised representative, in relation to an employee, means a person who is authorised under section 236 of the Employment Relations Act 2000 to repre‐ sent the employee average daily pay means a rate of pay calculated in accordance with section 9A(2) average weekly earnings means 1/52 of an employee’s gross earnings bereavement leave means paid bereavement leave provided under subpart 4 of Part 2 closedown period has the meaning given to it by section 29 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 employ‐ ee’s employment agreement, to pay the employee, even though— (i) the amount to be paid is not specified in that employment agree‐ ment 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 employee has the same meaning as in section 6 (except subsection (1)(b)(ii)) of the Employment Relations Act 2000 existing collective agreement means a collective agreement that was entered into before 1 April 2004 existing employment agreement means an employment agreement that is entered into before 1 April 2004 existing individual employment agreement means an individual employment agreement that was entered into before 1 April 2004 family violence has the meaning given to it in section 9 of the Family Violence Act 2018 family violence leave means paid family violence leave provided under sub‐ part 5 of Part 2 former Act, in relation to the Accident Compensation Act 2001, has the same meaning as in section 6(1) of that Act gross earnings has the meaning given to it by section 14 holiday— (a) means— (i) a paid annual holiday provided under subpart 1 of Part 2: (ii) a paid public holiday provided under subpart 3 of Part 2; and (b) includes any alternative holiday an employee is entitled to under section 56 or section 59 holiday and leave record means the record required to be kept under section 81 holiday pay— (a) means pay for an annual holiday or a public holiday; and (b) includes a payment an employee is entitled to under section 61 in advance,— (a) in relation to an annual holiday, means an annual holiday taken by an employee before the entitlement to the holiday has arisen under section 16: (b) in relation to sick leave or bereavement leave, means any sick leave or bereavement leave taken by the employee before the entitlement to the leave has arisen under section 63: (c) in relation to family violence leave, means any family violence leave taken by the employee before the entitlement to the leave has arisen under section 72C leave pay means pay for sick leave, bereavement leave, or family violence leave ordinary weekly pay has the meaning given to it by section 8 partner, in the phrase “spouse or partner” and in related contexts, means civil union partner or de facto partner person affected by family violence has the meaning given to it by section 72B 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 relevant daily pay has the meaning given to it by section 9 sick leave means paid sick leave provided under subpart 4 of Part 2. (2) In this Act, unless the context otherwise requires,— (a) the terms Authority, court, department, employer, employment agreement, Labour Inspector, and union have the same meanings as in section 5 of the Employment Relations Act 2000; and (b) any other term or expression that is used but not defined in this Act, but that is defined in the Employment Relations Act 2000, has the meaning given to it by that Act. (3) In this Act, a reference to— (a) an employee, in relation to an employer, means a person employed by the employer: (b) an employer, in relation to an employee, means the employee’s employer.

en-NZ · official · sha256:0309efaa303552ee359f4663c9c2b14aa2601c75963f06d9d79890697c33ca60

average weekly earnings means 1/52 of an employee’s gross earnings

Referencing norms: AverageWeeklyEarnings

en-NZ · official · sha256:dae0a410249c3b76a7c4e713ecec6ede868e63ad753eff5a741912abf2a75e38

63 Entitlement to sick leave and bereavement leave (1) An employee is entitled to sick leave and bereavement leave in accordance with this subpart— (a) after the employee has completed 6 months’ current continuous employ‐ ment with the employer; or (b) if, in the case of an employee to whom subsection (1)(a) does not apply, the employee has, over a period of 6 months, worked for the employer for— (i) at least an average of 10 hours a week during that period; and (ii) no less than 1 hour in every week during that period or no less than 40 hours in every month during that period. (2) Sick leave and bereavement leave must be provided— (a) to an employee to whom subsection (1)(a) applies, for— (i) the 12-month period of continuous employment beginning at the end of the 6-month period specified in that subsection; and (ii) each subsequent 12 months of current continuous employment: (b) to an employee to whom subsection (1)(b) applies, for— (i) the 12-month period of employment beginning at the end of the 6- month period specified in that subsection; and (ii) each subsequent 12-month period of employment as long as the circumstances referred to in subparagraphs (i) and (ii) of that sub‐ section continue to apply. (3) However, an employer and employee may agree that— (a) the employee may take sick leave or bereavement leave in advance; and (b) in the case of sick leave taken in advance, the amount of leave taken is to be deducted from the employee’s entitlement under this section.

Referencing norms: EntitledByPartTimeEquivalent, EntitledBySixMonthsContinuous, continuous_employment_of_six_months, part_time_equivalent_of_six_months

en-NZ · official · sha256:b4f05a1f8b8c9579313401127a4457f1ef1c9bada7816d6510cdc06986bba015

65 Sick leave (1) An employee may take sick leave if— (a) the employee is sick or injured; or (b) the employee’s spouse or partner is sick or injured; or (c) a person who depends on the employee for care is sick or injured. (2) An employee is entitled to 10 days’ sick leave for each of the 12-month periods specified in section 63(2).

Referencing norms: SickLeaveEntitlementIsTenDays, SickLeaveForDependantSickness, SickLeaveForOwnSickness, SickLeaveForPartnerSickness, dependant_sick_or_injured_on, employee_sick_or_injured_on, partner_sick_or_injured_on

en-NZ · official · sha256:bc3b54578716fafb8f8e718c340807bd75ba651a53beb387b3ffb0b1f550d258

67 Sick leave need not be paid out An employee is not entitled to be paid for any sick leave that has not been taken before the date on which his or her employment ends.

en-NZ · official · sha256:d6f031a7822326912236156e489aa1efa70faf772b3235c8adf3746d52c50d26

69 Bereavement leave (1) An employee may take bereavement leave in accordance with sections 63 and 70 if the employee suffers a bereavement. (2) An employee suffers a bereavement— (a) on the death of the employee’s— (i) spouse or partner: (ii) parent: (iii) child: (iv) brother or sister: (v) grandparent: (vi) grandchild: (vii) spouse’s or partner’s parent; or (b) on the death of any other person if the employer accepts, having regard to relevant factors such as those set out in subsection (3), that the employee has suffered a bereavement as a result of the death; or (c) on the end of an employee’s pregnancy by way of a miscarriage or still- birth; or (d) on the end of another person’s pregnancy, by way of a miscarriage or still-birth, if the employee— (i) is the person’s spouse or partner; or (ii) is the person’s former spouse or partner and would have been a biological parent of a child born as a result of the pregnancy; or (iii) had undertaken to be the primary carer (as described in section 7(1)(c) of the Parental Leave and Employment Protection Act 1987) of a child born as a result of the pregnancy; or (iv) is the spouse or partner of a person who had undertaken to be the primary carer of a child born as a result of the pregnancy. (3) For the purposes of subsection (2)(b), relevant factors include— (a) the closeness of the association between the employee and the deceased person: (b) whether the employee has to take significant responsibility for all or any of the arrangements for the ceremonies relating to the death: (c) any cultural responsibilities of the employee in relation to the death. (4) In this section,— miscarriage means the end of a pregnancy in the first 20 weeks of pregnancy other than as a result of abortion services provided in accordance with the Con‐ traception, Sterilisation, and Abortion Act 1977 still-birth means a still-birth within the meaning of the Births, Deaths, Mar‐ riages, and Relationships Registration Act 2021 other than as a result of abor‐ tion services provided in accordance with the Contraception, Sterilisation, and Abortion Act 1977.

Referencing norms: EntitledToBereavementLeaveRequiresSubpartEntitlement, QualifyingByEmployerAcceptance, QualifyingByListedRelative, QualifyingByOwnPregnancyLoss, QualifyingByPartnerPregnancyLoss, bereavement_category, bereavement_of, employer_accepts_bereavement, employer_accepts_bereavement/external

en-NZ · official · sha256:b0fbd5e5472b7875001d3e9281c9b1c48cbef8136000aaf3481483074d9b051d

70 Duration of bereavement leave (1) An employer must allow an employee to take— (a) 3 days’ bereavement leave for each type of bereavement described in section 69(2)(a), (c), and (d); and (b) 1 day’s bereavement leave for a bereavement described in section 69(2)(b). (2) If an employee suffers more than 1 bereavement at the same time, he or she may take the amount of bereavement leave specified in subsection (1) in respect of each bereavement.

Referencing norms: DurationOneDay, DurationThreeDays

en-NZ · official · sha256:8f3bb873eab3bc076fae8b3201db9940b1f94fe69b9d9e2acd60736226abad9d

71 Payment for sick leave and bereavement leave (1) An employer must pay an employee an amount that is equivalent to the employee’s relevant daily pay or average daily pay for each day of sick leave or bereavement leave taken by the employee that would otherwise be a work‐ ing day for the employee. (2) Despite subsection (1), an employer is not required to pay an employee for any time for which the employee is paid weekly compensation under the Accident Compensation Act 2001 or former Act. (3) An employer must not require an employee to take as sick leave any time for which the employee is being paid— (a) first week compensation by the employer under section 97 of the Acci‐ dent Compensation Act 2001 or former Act; or (b) weekly compensation for a work-related injury within the meaning of that Act or former Act. (4) However, if an employer pays the difference between the employee’s first week compensation or weekly compensation and ordinary weekly pay, the employer may agree with the employee that he or she may deduct from the employee’s current sick leave entitlement 1 day for every 5 whole days that the employer makes that payment.

Referencing norms: BereavementLeavePayForDay, SickLeavePayForDay, bereavement_leave_taken_on, sick_leave_taken_on

en-NZ · official · sha256:fe4b3a922c0ab8a24b702569dbfb9a5069173fd82f15595e017bcd9751e07a64

8 Meaning of ordinary weekly pay (1) In this Act, unless the context otherwise requires, ordinary weekly pay, for the purposes of calculating annual holiday pay,— (a) means the amount of pay that the employee receives under his or her employment agreement for an ordinary working week; and (b) includes— (i) productivity or incentive-based payments (including commission) if those payments are a regular part of the employee’s pay: (ii) payments for overtime if those payments are a regular part of the employee’s pay: (iii) the cash value of any board or lodgings provided by the employer to the employee; but (c) excludes— (i) productivity or incentive-based payments that are not a regular part of the employee’s pay: (ii) payments for overtime that are not a regular part of the employ‐ ee’s pay: (iii) any one-off or exceptional payments: (iv) any discretionary payments that the employer is not bound, under the terms of the employee’s employment agreement, to pay the employee: (v) any payment of any employer contribution to a superannuation scheme for the benefit of the employee. (2) If it is not possible to determine an employee’s ordinary weekly pay under sub‐ section (1), the pay must be calculated in accordance with the following for‐ mula: a−b c where— a is the employee’s gross earnings for— (i) the 4 calendar weeks before the end of the pay period immediately before the calculation is made; or (ii) if the employee’s normal pay period is longer than 4 weeks, that pay period immediately before the calculation is made b is the total amount of payments described in subsection (1)(c)(i) to (iii) c is 4. (3) However, an employment agreement may specify a special rate of ordinary weekly pay for the purpose of calculating annual holiday pay if the rate is equal to, or greater than, what would otherwise be calculated under subsection (1) or subsection (2).

Referencing norms: AgreementDisplacesTheFormula, OwpByFormula, OwpIsTheBase, OwpIsTheSpecialAgreedRate, OwpUnderAgreement, OwpWindowEarning, OwpWindowGrossEarnings, OwpWindowMembership, SpecialRateDisplacesTheCalculatedRate, owp_not_determinable_under_subsection_1, owp_not_determinable_under_subsection_1/external

en-NZ · official · sha256:ff95c405b56a4b258058cba08c0a60ae13549b7f0f7de83e8bba7bcc08ce784e

9 Meaning of relevant daily pay (1) In this Act, unless the context otherwise requires, relevant daily pay, for the purposes of calculating payment for a public holiday, an alternative holiday, sick leave, bereavement leave, or family violence leave,— (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 alter‐ native holiday, sick leave, bereavement leave, or family violence 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) is to be applied in the case of a public holi‐ day, the amount of pay does not include any amount that would be added by virtue of section 50(1)(a) (which relates to the requirement to pay time and a half).

Referencing norms: RdpBaseIsTheAmount, RdpIsTheBase, RdpIsTheSpecialAgreedRate, SpecialRateDisplacesTheBase, daily_pay_not_determinable_under_section_9, daily_pay_not_determinable_under_section_9/external, relevant_daily_pay_base_amount, special_relevant_daily_pay_rate

en-NZ · official · sha256:159a7285b37510bd860f57e1cbb43ffccf406780ced3db840d753e536a26975b

9A Average daily pay (1) An employer may use an employee’s average daily pay for the purposes of cal‐ culating payment for a public holiday, an alternative holiday, sick leave, bereavement leave, or family violence leave if— (a) it is not possible or practicable to determine an employee’s relevant daily pay under section 9(1); or (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) is to be applied in the case of a public holiday, the amount of pay does not include any amount that would be added by virtue of section 50(1)(a) (which relates to the requirement to pay time and a half).

Referencing norms: AdpElectionDisplacesRdp, AdpPermittedByNotDeterminable, AdpPermittedByVariation, AverageDailyPayFormula, DailyPayIsAverageDailyPay, DailyPayIsRelevantDailyPay, average_daily_pay_elected, daily_pay_varies_in_pay_period, days_earning_gross_earnings_52_weeks, gross_earnings_52_weeks_before