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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 52 and 101 (holidays with pay) together.

Article 2(3) of Convention No. 52 and Article 5(d) of Convention No. 101. Illness not to be counted as part of the holidays. Following its previous comments, the Committee notes the Government’s indication in its report, that pursuant to section 38 of the Holidays Act 2003, as amended up to 2022, where an employee has been allowed to take annual holidays and becomes sick or injured before such holidays, the employer must allow that employee to take as sick leave any period of sickness or injury that the employee would otherwise take as annual leave. The Government also indicates that where the employee becomes sick during annual holidays, the employee can take as sick leave any period of sickness or injury that they would otherwise take as annual leave, with their employer’s agreement. The Committee notes this information, which addresses it previous request.

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Monetary compensation for leave not taken. Prohibition to forgo holidays. Following its previous comments, the Committee notes the Government’s indication that the practice of receiving monetary compensation for a portion of the holiday entitlement not exceeding one week (“cashing up”), foreseen in section 28A of the Holidays Act 2003, can only be done at the employees’ request, in writing, and that the employer is not required to agree to such requests. The Government further indicates that employers may have a policy allowing them not to consider employees’ request for a portion of their annual holidays to be paid out, pursuant to section 28E of the Holidays Act 2003. While taking note of this information,the Committee recalls that under the Conventions any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, andrequests the Government to indicate the measures taken or envisaged to ensure that all workers covered by the Conventions, in all circumstances, effectively enjoy a determined period of paid annual leave as required by the Conventions, and to provide information in this regard.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2(3) and 4 of the Convention. Illness not to be counted as part of the holidays – Monetary compensation for leave not taken. The Committee recalls its previous comment in which it noted that sections 36 and 38 of the Holidays Act 2003 give only partial effect to this provision of the Convention since they do not ensure that periods of temporary incapacity due to sickness may in no case be deducted from annual paid leave. The Committee notes, in this connection, the comments of the New Zealand Council of Trade Unions (NZCTU) according to which the Government should take steps to bring the national law into conformity with this requirement of the Convention. It also notes the comments of Business New Zealand according to which employees should have some choice in the matter and not be required to use their sick leave whether they want to or not. The Committee requests the Government to consider suitable action in order to ensure that incapacity due to illness is not deducted from holidays with pay under any circumstances, as prescribed by this Article of the Convention.

In addition, the Committee notes that under section 28A of the Holidays Act, an employee may request his employer to pay out a portion of the holiday entitlement not exceeding one week. The Government explains that because only one week may be “cashed up”, employees are still entitled to the remaining three weeks of annual leave from work, which may not be traded. The Committee notes, in this respect, that the NZCTU opposes the “cashing up” of annual leave as detrimental to workers’ well-being and work–life balance and asks the Government to comply with the requirements of the Convention by repealing section 28A. The Committee wishes to observe that Article 4 of the Convention prohibits any agreement to relinquish the right to annual holiday with pay, for compensation or otherwise, it being understood that by “right to annual holiday” the Convention refers to the statutory holiday entitlement in each ratifying member State and not to the minimum prescribed by the Convention. The Committee accordingly requests the Government to consider appropriate measures to ensure full conformity with this Article of the Convention. Finally, the Committee wishes to draw the Government’s attention to the fact that because of the difficulties experienced by many countries in complying with the above requirements, Article 6(2) of the Holidays with Pay Convention (Revised), 1970 (No. 132) – which the Government is strongly encouraged to ratify – was deliberately drafted in more flexible terms leaving it to the competent authority to determine the conditions under which periods of incapacity for work resulting from sickness or injury might not be counted as part of the minimum annual holiday with pay while Article 12 of the same Convention prohibits agreements to relinquish the right to the minimum annual holiday with pay prescribed in Article 3(3) of that Convention.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest the adoption of the Holidays Act, 2003 which increased the minimum annual holiday entitlement from three to four weeks as from 1 April 2007. It also notes the Government’s explanations concerning the practice of the Employment Court and of the Employment Relations Authority in determining the “employee” status of persons as a preliminary matter in cases where the actual nature of the work relationship comes into question. Moreover, the Committee notes the general comments of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand which were attached to the Government’s report as well as the Government’s reply.

Article 2, paragraph 3(b), of the Convention. Period of sickness not to be included in annual leave. The Committee notes that, under section 36 of the Holidays Act, where an employee is sick or injured before commencing scheduled annual holidays, the employee is entitled to take any scheduled annual holidays as sick leave. It also notes that under section 38 of the Act, where an employee is sick or injured during annual holidays, the employee and employer may agree that the employee take the period of sickness or injury as sick leave rather than annual holidays. Recalling that under this Article of the Convention, sickness must not be deducted from holidays with pay under any circumstances, irrespective of whether sickness occurs in the course of the holiday, or at the time when the holiday is due to start, the Committee requests the Government to take the necessary steps in order to bring its legislation into line with the requirements of the Convention on this point.

Part V of the report form. The Committee notes with interest the detailed information provided by the Government concerning the three-year programme to promote better work–life balance, which involved policy initiatives, practical tools and research work. In this connection, it notes the adoption of the Employment Relations (Flexible Working Arrangements) Amendment Act, 2007, which aims at facilitating employees to fulfil their care and other family responsibilities by offering the possibility of flexible work arrangements. Moreover, the Committee notes the statistical information regarding the number of complaints received by the labour inspection services in the period 2003–08 alleging breaches of the Holidays Act. The Committee would appreciate if the Government would continue to provide up to date information on all aspects of the practical implementation of the Convention.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that Convention No. 52 is an outdated instrument and consequently States parties to this Convention should be invited to denounce it and ratify at the same time the more recent Holidays with Pay Convention (Revised), 1970 (No. 132) (see GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of employed persons in economic sectors other than agriculture by a State party to Convention No. 52 involves the immediate denunciation of the latter. The ratification of Convention No. 132 appears to be all the more opportune as the legislation of New Zealand, which provides for paid annual leave of four weeks for all employees in all sectors, is clearly more appropriate than Convention No. 52, and seems to be in substantial conformity with most of the provisions of Convention No. 132. The Committee requests the Government to keep the Office informed of any decision taken or envisaged concerning the possible ratification of Convention No. 132.

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

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.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the detailed report sent by the Government and the information supplied in answer to its previous comments. It also notes the observations made by the New Zealand Employers’ Federation (NZEF) and the New Zealand Confederation of Trade Unions (NZCTU) sent with the report.

The Committee recalls that its previous comments addressed section 12(1A) of the Holidays Act, 1981, which provides that, where the employer fails to allow the employee to take the leave or any part of it within 12 months of becoming entitled to it, the employer is bound to grant the leave and the employee’s entitlement to it does not cease until it is allowed. In view of the information supplied by the Government and the NZEF on this point, the Committee wishes to recall 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 hopes that the Government will take account of these comments in the review it intends to conduct of the legislation on holidays in cooperation with the social partners.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to its previous comments, the Committee notes the information in the Government's report on the working of inspection and the system of sanctions established to ensure application of the provisions of the Convention. It would be grateful if the Government would continue to provide information on the practical application of these enforcement mechanisms (see Article 8 of the Convention and point III of the report form).

The Committee also notes the observations made by the New Zealand Council of Trade Unions (NZCTU) concerning the postponement of holidays pursuant to the Holidays Act, 1981, as well as the Government's reply to these comments. In this respect, the Committee observes that under section 12(1A) of the Holidays Act, 1981 (as amended in 1990), an employer may postpone within the 12-month period any holiday to which the worker is entitled and the worker's entitlement to that holiday shall not cease until it is allowed. The Committee recalls that, in accordance with the Convention, every person to whom the Convention applies, shall be entitled to an annual holiday of at least six working days (Article 2, paragraph 1, and Article 4 of the Convention) and that consequently, only part of the holiday which exceeds this minimum duration may be postponed (Article 2, paragraph 4). It therefore hopes that the Government will take the necessary measures in the near future to bring the legislation into conformity with the Convention on this point.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Article 8 of the Convention and Part III of the report form. In previous comments, the Committee referred to the observation made by the New Zealand Council of Trade Unions (NZCTU) concerning the transferral of responsiblity for enforcing awards and agreements from the Department of Labour to employers and unions. In its report, the Government indicates that labour inspectors continue to be able to prosecute both for the recovery of holiday pay due under the legislation and, at their discretion, for a penalty. Under legislation in force since 1987, all employees can also use the specialist labour legislation institutions to enforce their employment contracts, and since 1991 under an amendment to section 35 of the Holidays Act inspectors too may take this course. It states that the added workload of the inspectorate led to an increase in their resources in August 1991, and it provides figures relating to their enforcement of holiday provisions.

The Committee hopes the Government will continue to provide information on the operation of these enforcement provisions.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 8 of the Convention and Part III of the report form. The Committee notes the observation made by the New Zealand Council of Trade Unions (NZCTU) concerning the transferral of responsibility for enforcing awards and agreements from the Department of Labour to employers and unions. The NZCTU states that in practice 40 per cent of the workforce now has no effective means of ensuring a paid holiday, and that this is not satisfactory under the Convention.

The Committee would be glad if the Government would provide its own views in this respect. Please give full information on the system of sanctions established to ensure application of the provisions of the Convention, including information on practical application of the system. Please indicate any modification made, either in law or in practice, to section 35 of the Holidays Act 1981; and describe the working of inspection in this respect.

[The Government is asked to report in detail for the period ending 30 June 1991.]