Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Holidays with Pay Convention, 1936 (No. 52) - New Zealand (Ratification: 1950)

Article 2, paragraphs 1, 2 and 4, of the Convention. The Holidays Bill, 2003, currently under parliamentary discussion, only partly repeals section 12(1A) of the Holidays Act, 1981, which provides that, where the employer fails to allow the employee to take the leave or part of it within 12 months from the entitlement to it, he is bound to grant the leave and the entitlement to it remains in force until it is allowed. In so far, sections 15(a) and 18(1) of the Bill, according to which the employer shall allow the employee to take the annual holiday of at least three weeks within 12 months after the date on which the employee’s entitlement arose, and to take at least two weeks of it in a continuous period, ensure conformity with these provisions of the Convention. However, conformity with these provisions is again called into question by section 16(3) of the Bill, which lets section 12(1A) of the Holidays Act, 1981, unchanged in so far, as the entitlement to holiday remains in force until the employee has taken all of it. As a consequence, although the employer is bound to grant the holiday, as prescribed in section 18(1) of the Bill, the employee may postpone it. The Committee, therefore, must reiterate that, according to Article 2, paragraph 4, of the Convention only the part of the paid annual leave which exceeds the minimum prescribed in Article 2, paragraphs 1 and 2, may be postponed. It regrets that the Holiday Bill in its present form does not give full effect to these provisions of the Convention and again expresses the hope that the Government will take the necessary action. The Committee requests the Government to keep it informed on all developments in this regard.

Referring to section 6 of the Employment Relations Act (No. 24) of 2000, the Government indicates that, in order to qualify for holidays, the worker needs to be classified as an employee. It takes the view that this regulation, which authorizes the employment relations authority or the court to determine the employment status of a worker, including under the Holidays Act, 1981, makes it easier for a worker to challenge this status, where the relationship is given a label that does not reflect the reality of the situation. This procedure may be considered as an alternative to good faith employment relations (section 4 of the Employment Relations Act), where these do not function properly, including divergences between the employer and the employee on the worker status, as defined under section 6(1)(a) and (b) of this Act. On the other hand, it makes it more difficult for an employee to enjoy his right to holiday, whenever the employer disputes his status as employee. The Committee asks the Government to provide further information on the practical application of section 6 of the Employment Relations Act and its provisions related to jurisdiction or determinations by the authority or the court on status matters, as for example provided for under sections 161, 174 and 178 of the Act.

The Committee has also taken note of the observations made by Business New Zealand and the New Zealand Council of Trade Unions in view of the Holidays Bill. While the employers’ association would rather leave the determination of essential issues related to paid leave to the parties concerned, the workers’ side stresses that the problems workers are facing with the change of work patterns and current work pressures require compensation by more recovery time. It therefore wishes to see the minimum mandatory annual leave of three weeks for full-time workers, as currently provided for under the Holidays Bill, to be extended to four weeks. The Government, in reply to the workers’ observation, refers to its initiative to develop a work-life balance policy over the next year. The Committee asks the Government to keep it informed on any progress in this respect.