Employment Leave Act 2026
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Employment Leave Act 2026
Public Act |
2026 No 48 |
|
Date of assent |
6 August 2026 |
|
Commencement |
see section 2 |
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Employment Leave Act 2026.
2 Commencement
(1)
This Act comes into force on 6 August 2028.
(2)
However,—
(a)
section 153 and clause 27 of Schedule 1 come into force on 7 August 2026; and
(b)
section 179 (in so far as it relates to sections 181, 183, and 185 to 187) and sections 181, 183, and 185 to 187 come into force on 1 July 2027.
Section 2(1): editorial change made by the PCO, on 18 September 2026, under sections 86(1) and 87(m) of the Legislation Act 2019 (2019 No 58).
Section 2(2)(a): editorial change made by the PCO, on 18 September 2026, under sections 86(1) and 87(m) of the Legislation Act 2019 (2019 No 58).
Part 1 Preliminary provisions
3 Purpose
The purpose of this Act is to promote balance between work and other aspects of employees’ lives and, to that end, to—
(a)
provide employees with minimum entitlements to—
(i)
annual leave to give them the opportunity to take paid time away from work and for rest and recreation:
(ii)
public holidays for the observance of days of national, religious, or cultural significance:
(iii)
sick leave to assist employees who are unable to work because they are sick or injured, or because people who depend on them are sick or injured:
(iv)
bereavement leave to assist employees who have suffered a bereavement:
(v)
family violence leave to assist employees to deal with the effect on the employees of being persons affected by family violence; and
(b)
provide employees, under specified circumstances, with the following minimum entitlements:
(i)
a leave payment if they take leave:
(ii)
a leave compensation payment if they work casual hours or additional hours.
4 Application
(1)
This Act applies to all employers and employees, including the Crown and its employees, but—
(a)
does not apply to the Armed Forces as defined in section 2(1) of the Defence Act 1990; and
(b)
applies on and from a date or dates set by Order in Council to—
(i)
a person who is—
(A)
employed by the board of a State school; and
(B)
paid by a payroll service established under section 578 of the Education and Training Act 2020 (see clause 1 of Schedule 1); and
(ii)
a person who is the employer of a person described in paragraph (b)(i).
(2)
If this Act does not apply to a person described in subsection (1)(b) by the tenth anniversary of Royal assent, it applies to that person on and from that date.
(3)
An Order in Council under subsection (1)(b) may set different dates for—
(a)
different classes of persons described in subsection (1)(b); or
(b)
different provisions of this Act and for different purposes; or
(c)
different parts of this Act that a provision of this Act would otherwise bring into force at the same time.
(4)
An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
(5)
In this section, board and State school have the meanings set out in section 10(1) of the Education and Training Act 2020.
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
5 Interpretation
(1)
In this Act, unless the context otherwise requires,—
accident compensation means first week compensation or weekly compensation under the Accident Compensation Act 2001
additional hours has the meaning set out in section 7
alternative leave means leave provided under subpart 3 of Part 2
annual closedown has the meaning set out in section 46
annual leave means leave provided under subpart 1 of Part 2
annual leave balance has the meaning set out in section 127(5)(a)
authorised representative, in relation to an employee, means a person who is authorised under section 236 of the Employment Relations Act 2000 to represent the employee
Authority has the meaning set out in section 5 of the Employment Relations Act 2000
availability provision has the meaning set out in section 67D of the Employment Relations Act 2000
average hourly rate for piece work,—
(a)
for the purposes of subpart 7 of Part 2, has the meaning set out in section 118(2); or
(b)
for the purposes of subpart 8 of Part 2, has the meaning set out in section 125(2)
averaged salary employee or ASE means an employee who—
(a)
works standard hours; and
(b)
does not work the same standard hours in each pay period; and
(c)
has an employment agreement that specifies a pattern of days on which the employee works; and
(d)
as a result of their annual salary being averaged, is paid the same portion of their salary each pay period
bereavement leave means leave provided under subpart 5 of Part 2
casual hours has the meaning set out in section 8
court has the meaning set out in section 5 of the Employment Relations Act 2000
employee has the meaning set out in section 6 (except subsection (1)(b)(ii)) of the Employment Relations Act 2000
employer has the meaning set out in section 5 of the Employment Relations Act 2000
employment agreement has the meaning set out in section 5 of the Employment Relations Act 2000
family violence has the meaning set out in section 9 of the Family Violence Act 2018
family violence leave means leave provided under subpart 6 of Part 2
Labour Inspector has the meaning set out in section 5 of the Employment Relations Act 2000
LCP employee has the meaning set out in section 125(1)
leave compensation payment or LCP means a payment payable by an employer to an employee under section 126
leave hourly rate has the meaning set out in section 118(1)
leave payment has the meaning set out in section 118(1)
leave payment rate has the meaning set out in section 118(1)
leave record means the record required to be kept under section 127
notional roster means a roster agreed or determined under section 10
ordinary hourly rate,—
(a)
for the purposes of section 121, has the meaning set out in section 121(5); or
(b)
for the purposes of section 126, has the meaning set out in section 126(3)
otherwise working day has the meaning set out in section 13
pay period has the meaning set out in section YA 1 of the Income Tax Act 2007
person affected by family violence has the meaning set out in section 101
public holiday means a day specified in section 52(1)
relevant hour,—
(a)
for the purposes of section 120, has the meaning set out in section 120(3); or
(b)
for the purposes of section 126, has the meaning set out in section 126(3)
sick leave means leave provided under subpart 4 of Part 2
sick leave balance has the meaning set out in section 127(5)(b)
standard hours has the meaning set out in section 6
start date, in relation to an employee, means—
(a)
the date on which the employee starts their employment with their employer, as specified in the employee’s employment agreement; or
(b)
if the employee’s employment agreement does not specify a start date, the earlier of—
(i)
the date that the employee and their employer agree will be the first date on which the employee will work for the employer; and
(ii)
the first date on which the employee is rostered to work for the employer
start date anniversary, in relation to an employee, means an anniversary of the employee’s start date
union has the meaning set out in section 5 of the Employment Relations Act 2000
work roster, in relation to an employee, means a roster that specifies the days of the week, and the hours in each day, when the employee is to work and that—
(a)
is agreed by the employee and their employer (whether in writing or otherwise); or
(b)
is set by the employer (whether in writing or otherwise).
(2)
In this Act, unless the context otherwise requires, any 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 set out in that Act.
Meanings of key terms
6 Meaning of standard hours
(1)
In this Act, unless the context otherwise requires, standard hours means—
(a)
hours that, under the employee’s employment agreement, the employer—
(i)
may require the employee to work; and
(ii)
must pay the employee for, regardless of whether the employer in fact requires the employee to work those hours; and
(b)
any breaks (for example, meal or rest breaks) from the hours described in paragraph (a) for which the employee is entitled to be paid by the employer; and
(c)
hours that would have been standard hours under paragraph (a) or (b) if the employee had not been—
(i)
on paid leave under this Act; or
(ii)
on paid leave under any other legislation (see subsection (3)); or
(iii)
on leave or on an absence from work, if—
(A)
the leave or absence is not provided for under this Act or any other legislation; and
(B)
the employer pays the employee while the employee is on leave or absent from work; or
(iv)
on unpaid leave or on an unpaid absence from work under any other legislation (see subsection (4)).
(2)
For the purposes of this Act, an employee’s standard hours must be specified in 1 or more of the following:
(a)
the employee’s employment agreement:
(b)
a work roster (if any):
(c)
the employee’s notional roster (if any).
(3)
(4)
For the purposes of subsection (1)(c)(iv), examples of unpaid leave or unpaid absence from work under other legislation include leave or absence under—
(a)
(b)
(c)
the Juries Act 1981.
(5)
However, standard hours excludes any hours under an availability provision in the employee’s employment agreement.
7 Meaning of additional hours
(1)
In this Act, unless the context otherwise requires, additional hours, in relation to an employee who works standard hours, means—
(a)
any hours in addition to the employee’s standard hours that the employer is not required to make available to the employee and that the employee has the right to refuse and—
(i)
that the employee works; and
(ii)
for which the employer must pay the employee an additional payment; or
(b)
any hours that the employee works under an availability provision.
(2)
Despite subsection (1)(b), additional hours excludes any hours that the employee works in addition to the employee’s standard hours if—
(a)
the employee is paid a salary; and
(b)
the employee’s employment agreement provides that the employee is not entitled to any payment, in addition to the employee’s salary, for working those extra hours because payment for working those hours is included in the employee’s salary.
(3)
For the purposes of subsection (1)(a), an additional payment is a payment that may be paid at a rate that is the same as or different from the rate of payment for working standard hours.
8 Meaning of casual hours
In this Act, unless the context otherwise requires, casual hours means the hours that an employee works if, under the employee’s employment agreement,—
(a)
the employer is not required to offer any work to the employee; and
(b)
the employee is not required to accept any work offered by the employer.
Transitional, savings, and related provisions
9 Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
Notional rosters
10 Notional roster
(1)
This section applies if—
(a)
an employment agreement provides for an employee to work standard hours; but
(b)
it is not possible to determine 1 or more of the following:
(i)
the number of the employee’s standard hours:
(ii)
the days of the week on which the employee has standard hours:
(iii)
the hours in each day that the employee has standard hours.
(2)
In the circumstances specified in subsection (1), the employee and their employer must,—
(a)
when entering into the employment agreement, agree in writing to a notional roster for the employee—
(i)
for the purposes specified in subsection (4); and
(ii)
that complies with subsection (5); and
(b)
ensure that the notional roster—
(i)
accurately reflects the intended pattern of the employee’s standard hours; and
(ii)
is kept up to date for the purposes specified in subsection (4).
(3)
However, a Labour Inspector may, in accordance with section 11, determine an employee’s notional roster if—
(a)
the employee and their employer fail to agree to a notional roster; or
(b)
the employee and their employer have agreed to a notional roster, but—
(i)
the employee or the employer considers that the agreed notional roster should be amended; and
(ii)
the employee and the employer are not able to agree on whether or how to amend the notional roster; or
(c)
the Labour Inspector, in the course of performing their functions, forms a belief that the notional roster is not appropriate for the purposes specified in subsection (4).
(4)
The notional roster,—
(a)
if subsection (1)(b)(i) applies, must be used to determine the number of the employee’s standard hours for the purposes of determining the employee’s entitlement to—
(i)
annual leave under section 24; and
(ii)
sick leave under section 73; and
(iii)
bereavement leave under section 88; and
(iv)
family violence leave under section 102; and
(b)
must be used to determine when the employee may take—
(i)
annual leave in the circumstances set out in section 32; and
(ii)
sick leave in the circumstances set out in section 83; and
(iii)
bereavement leave in the circumstances set out in section 95; and
(iv)
family violence leave in the circumstances set out in section 112; but
(c)
must not be used to determine the employee’s entitlement to—
(i)
a public holiday under section 53; or
(ii)
alternative leave under section 63.
(5)
An employee’s notional roster must specify—
(a)
the following information, if that information cannot be determined from the employee’s employment agreement:
(i)
the number of the employee’s standard hours:
(ii)
the days of the week on which the employee has standard hours:
(iii)
the hours in each day that are the employee’s standard hours: or
(b)
a methodology for determining the information in paragraph (a)(ii) and (iii).
11 How Labour Inspector determines notional roster
To determine an employee’s notional roster under section 10(3), a Labour Inspector—
(a)
must take into account—
(i)
the employee’s employment agreement; and
(ii)
the employee’s work patterns (if any); and
(b)
may give more weight to the employee’s work patterns than to the employee’s employment agreement during—
(i)
the 13 weeks immediately before the employee takes a period of leave for which the roster would be used to determine the employee’s leave entitlement; or
(ii)
the most recent 13 weeks for which the Labour Inspector has records when determining the notional roster.
12 Determination by Labour Inspector is binding
Except to the extent that, in any proceedings before the Authority or the court, the Authority or the court makes its own determination, a determination of a notional roster made by a Labour Inspector is binding on the employer and the employee.
Compare: 2003 No 129 s 79
When day is otherwise working day
13 When day is otherwise working day
In this Act, unless the context otherwise requires, otherwise working day means a day on which an employee would be working, but for the day being a public holiday, if 1 of the following applies:
(a)
the employee’s employment agreement specifies—
(i)
the days on which the employee would work; or
(ii)
a pattern of days on which the employee would work:
(b)
paragraph (a) applies and,—
(i)
during the period specified in section 14(1)(a)(i) or (ii) (as applicable), the employee has worked 1 or more days in addition to the days specified in paragraph (a); and
(ii)
the test set out in section 14 is satisfied in relation to the public holiday:
(c)
the employee’s employment agreement does not specify the days, or a pattern of days, on which the employee works but the test set out in section 14 is satisfied in relation to the public holiday.
Compare: 2003 No 129 s 12
14 Test for purposes of section 13(b) and (c)
(1)
For the purposes of section 13(b) and (c),—
(a)
the test is satisfied in relation to a public holiday if the employee worked for the employer (or was on paid or unpaid leave) for 50% or more of the days of the week that correspond to the public holiday in—
(i)
the period of 13 weeks ending on the day before the public holiday; or
(ii)
if the employee has worked for the employer for fewer than 13 weeks before the public holiday, the period—
(A)
starting on the employee’s start date; and
(B)
ending on the day before the public holiday; but
(b)
if the employee has taken any of the types of leave described in subsection (3) during a period described in paragraph (a)(i) or (ii), the test is satisfied in relation to the public holiday if the employee worked for the employer (or was on paid or unpaid leave) for 50% or more of the days that correspond to the public holiday in the period—
(i)
starting on the day after the last day of the leave described in subsection (3); and
(ii)
ending on the day before the public holiday.
(2)
However, if subsection (1)(b) applies, the public holiday is not an otherwise working day if there have been no days of the week that correspond to the public holiday in the period—
(a)
starting on the day after the last day of the leave described in subsection (3); and
(b)
ending on the day before the public holiday.
(3)
The types of leave are—
(a)
parental leave under the Parental Leave and Employment Protection Act 1987:
(b)
volunteers leave under the Volunteers Employment Protection Act 1973:
(c)
leave for which the employee was paid accident compensation.
15 Determining hours employee would have worked on otherwise working day
(1)
For the purposes of section 16(1)(b), the number of hours that the employee would have worked on the otherwise working day is—
(a)
the number of hours that the employee would have worked on that day according to their employment agreement, as it was on the public holiday; or
(b)
if the employee’s employment agreement does not specify the number of hours that they would have worked on that day, the average number of hours that the employee worked (or was on paid or unpaid leave) each day during the reference period, as calculated using the following formula:
u ÷ v = w
where—
- u
is the total number of hours that the employee worked (or was on paid or unpaid leave) during the reference period
- v
is the number of days that the employee worked (or was on paid or unpaid leave) during the reference period
- w
is the average number of hours that the employee worked (or was on paid or unpaid leave) each day during the reference period.
(2)
In subsection (1), reference period means—
(a)
each pay period starting in the 93 days before the start of the pay period in which the public holiday falls; or
(b)
if the employee has worked for the employer for fewer than 93 days before the start of the pay period in which the public holiday falls, each pay period starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the start of the pay period in which the public holiday falls.
16 Employer must notify employee whether day is otherwise working day
(1)
If the test in section 14 is satisfied, an employer must notify the employee as soon as practicable—
(a)
that the test in section 14 is satisfied; and
(b)
of the number of hours that the employee would have worked on that day, calculated in accordance with section 15.
(2)
If the test in section 14 is not satisfied, an employer must notify the employee as soon as practicable that the public holiday is not an otherwise working day.
(3)
An employer may notify an employee under this section by including the information in the employee’s pay statement (provided under section 130A of the Employment Relations Act 2000) for the relevant pay period.
When day is not otherwise working day
17 When day is not otherwise working day
(1)
Despite section 13, a day is not an otherwise working day for an employee if it would be reasonable for the employee and their employer to expect that the employee would not work on that day because the employee is on—
(a)
parental leave under the Parental Leave and Employment Protection Act 1987; or
(b)
volunteers leave under the Volunteers Employment Protection Act 1973; or
(c)
leave for which the employee is paid accident compensation; or
(d)
unpaid leave.
(2)
For the purposes of subsection (1)(d), unpaid leave does not include any unpaid leave that the employee takes during—
(a)
an annual closedown under section 47; or
(b)
an agreed closure under section 50.
Other provisions
18 Multiple roles with same employer treated separately
(1)
This section applies if an employee agrees to perform more than 1 role for an employer by—
(a)
entering into a separate employment agreement for each role; or
(b)
entering into 1 employment agreement for all of the roles.
(2)
If 2 or more roles provide for the employee to work standard hours, the employee and their employer may agree how leave entitlements and payments under this Act will be treated for each of those roles.
(3)
However,—
(a)
subsection (2) does not apply to a role that provides for the employee to work casual hours; and
(b)
if the employee and the employer do not agree under subsection (2), this Act applies to the employee’s leave entitlements and payments for each role separately.
19 Restrictions on type of hours
An employee who—
(a)
has standard hours cannot have casual hours in relation to the same role:
(b)
does not have standard hours under an employment agreement cannot have additional hours under that employment agreement.
20 This Act provides minimum entitlements
(1)
Each entitlement provided to an employee by this Act is a minimum entitlement.
(2)
This Act does not prevent an employer from providing an employee with enhanced or additional entitlements (whether specified in an employment agreement or otherwise) on a basis agreed with the employee (non-statutory entitlements).
(3)
For the purposes of this Act, if an employer provides an employee with non-statutory entitlements but does not record those entitlements separately from minimum entitlements provided under this Act, the non-statutory entitlements must be treated as if they were minimum entitlements provided under this Act.
(4)
An employment agreement that purports to exclude, restrict, or reduce an employee’s minimum entitlements under this Act—
(a)
has no effect to the extent that it does so; but
(b)
is not an illegal contract under subpart 5 of Part 2 of the Contract and Commercial Law Act 2017.
Compare: 2003 No 129 s 6
21 When employee receiving accident compensation may also take leave
(1)
This section applies if an employee is receiving accident compensation.
(2)
If the employee does not work in a week during which they are entitled to receive accident compensation, the employee and their employer may agree that, during that week, the employee may take 1 or more of the following types of leave:
(a)
accrued annual leave, in accordance with subpart 1 of Part 2:
(b)
accrued sick leave, in accordance with subpart 4 of Part 2:
(c)
family violence leave, in accordance with subpart 6 of Part 2.
(3)
However,—
(a)
for employees who work casual hours, the amount of family violence leave taken under subsection (2)(c) must not exceed the amount calculated under subsection (4); and
(b)
for all other employees, the amount of leave taken under subsection (2) must not exceed, in total, 20% of the employee’s standard hours for that week.
(4)
For the purposes of subsection (3)(a), the maximum number of hours of family violence leave that the employee may take in the week must be calculated using the following formula:
(h ÷ w) × 0.2 = d
where—
- h
is the total number of hours that the employee worked (or was on paid or unpaid leave) in the reference period
- w
is the number of whole and part weeks in the reference period
- d
is the maximum number of hours of family violence leave that the employee may take in the week.
(5)
If an employee takes a number of hours of family violence leave under subsection (2), the employer must deduct the corresponding number of days of family violence leave from the employee’s family violence leave entitlement.
(6)
For the purposes of subsection (5), in relation to an employee who works casual hours, the number of days to be deducted must be calculated using the following formula:
a ÷ (b ÷ c) = v
where—
- a
is the number of hours of family violence leave that the employee has taken, as calculated under subsection (4)
- b
is the number of hours that the employee worked (or was on paid or unpaid leave) in the reference period
- c
is the number of days that the employee worked (or was on paid or unpaid leave) in the reference period
- v
is the number of days of family violence leave that the employer must deduct from the employee’s family violence leave entitlement.
(7)
For the purposes of subsection (5), in relation to an employee who works standard hours, the number of days to be deducted must be calculated using the following formula:
d ÷ (e ÷ f) = v
where—
- d
is the number of hours of family violence leave that the employee has taken
- e
is the number of standard hours that the employee would have worked (or would have been on paid or unpaid leave) in the week during which they are entitled to receive accident compensation
- f
is the number of days that the employee would have worked (or would have been on paid or unpaid leave) in the week during which they are entitled to receive accident compensation
- v
is the number of days of family violence leave that the employer must deduct from the employee’s family violence leave entitlement.
(8)
For each period of leave that the employee and the employer agree the employee may take under subsection (2), the employer must pay the employee not less than the leave payment calculated under section 120.
(9)
In this section, reference period means—
(a)
each pay period starting in the 93 days before the start of the pay period in which the employee first becomes entitled to receive accident compensation; or
(b)
if the employee has worked for the employer for fewer than 93 days before the start of the pay period in which the employee first becomes entitled to receive accident compensation, each pay period starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the pay period in which the employee first becomes entitled to receive accident compensation.
Part 2 Leave entitlements and payments
22 Overview of this Part
(1)
In this Part, subpart 1 provides for annual leave as follows:
(a)
when an employee accrues annual leave; and
(b)
when an employee may take annual leave; and
(c)
how an employee may apply to cash up annual leave; and
(d)
how annual leave relates to other leave entitlements; and
(e)
that an employer may impose an annual closedown; and
(f)
that an employer and an employee may agree to a closure or restriction of all or part of the employer’s operations for a period of time.
(2)
Subpart 2 provides for public holidays as follows:
(a)
when an employee is entitled to public holidays; and
(b)
when a public holiday may be transferred to another day; and
(c)
how public holidays relate to other leave entitlements.
(3)
Subpart 3 provides for alternative leave for employees who work on a public holiday as follows:
(a)
when an employee accrues alternative leave; and
(b)
when an employee may take alternative leave; and
(c)
how an employee may apply to cash up alternative leave.
(4)
Subpart 4 provides for sick leave as follows:
(a)
when an employee accrues sick leave; and
(b)
when an employee may take sick leave.
(5)
Subpart 5 provides for bereavement leave as follows:
(a)
when an employee is entitled to bereavement leave; and
(b)
when an employee may take bereavement leave.
(6)
Subpart 6 provides for family violence leave as follows:
(a)
when an employee is entitled to family violence leave; and
(b)
when an employee may take family violence leave.
(7)
Subpart 7 provides for—
(a)
an employee to be paid a leave payment,—
(i)
if the employee works standard hours, for each standard hour or additional hour (if applicable) that the employee does not work because they take—
(A)
annual leave:
(B)
sick leave:
(C)
alternative leave:
(D)
bereavement leave:
(E)
family violence leave:
(ii)
if the employee works casual hours, for each casual hour that the employee does not work because they take—
(A)
alternative leave:
(B)
bereavement leave:
(C)
family violence leave:
(iii)
if the employee does not work on a public holiday that is an otherwise working day for the employee; and
(b)
an employee to be paid for working on a public holiday; and
(c)
an employee to be paid for cashed-up annual leave or alternative leave; and
(d)
an employee to be paid for annual leave or alternative leave if their employment ends.
(8)
Subpart 8 provides for—
(a)
an employee who works additional hours or casual hours to be paid an LCP for each hour that the employee works in a pay period—
(i)
in addition to any other payment that an employer is required to pay the employee in the same pay period; and
(ii)
instead of accruing annual leave or sick leave; and
(b)
how an employer must calculate an LCP.
Subpart 1—Annual leave
23 Application of this subpart
(1)
This subpart applies to an employee who works standard hours.
(2)
This subpart does not apply to any—
(a)
casual hours that the employee works; or
(b)
additional hours that the employee works.
Entitlement to and accrual of annual leave
24 Employee’s entitlement to accrue annual leave
(1)
An employee accrues not less than 0.0769 of an hour of annual leave for each standard hour or part of a standard hour.
Example
An employee works 37.5 standard hours each week. The minimum annual leave that the employee accrues each week is 2.88375 hours, calculated as follows:
37.5 × 0.0769 = 2.88375
(2)
For the purpose of determining the annual leave that an employee accrues when they are on leave under the Parental Leave and Employment Protection Act 1987, the employee’s standard hours under section 6(1)(c)(iv) are,—
(a)
if, in the 3 months before the employee starts their leave under that Act, the employee and their employer agree a temporary change to the employee’s standard hours, the employee’s standard hours immediately before the date on which the temporary change commences; or
(b)
in all other cases, the number of the employee’s standard hours immediately before the employee starts their leave under that Act.
(3)
For the purpose of determining the annual leave that an ASE accrues, the ASE accrues annual leave for each standard hour, or part of a standard hour, in the ASE’s pay period and not for each standard hour, or part of a standard hour, that the ASE is paid for in a pay period.
(4)
An employee’s entitlement to accrued annual leave remains in force until—
(a)
the employee has taken the annual leave; or
(b)
the employee has been paid for the annual leave in accordance with section 122 or 123.
(5)
In subsection (2)(a), temporary change means a change that—
(a)
increases or decreases the employee’s standard hours; and
(b)
is in place for no more than 3 months.
25 When employee does not accrue annual leave
(1)
For the purposes of calculating an employee’s annual leave under section 24, an employee does not accrue annual leave—
(a)
for an hour, or part of an hour, that the employee takes as leave or as an absence from work described in section 6(1)(c)(iii) if the employee and their employer agree that the employee does not accrue annual leave for that leave or absence from work; or
(b)
for an hour, or part of an hour, that the employee takes as unpaid leave (other than any unpaid leave referred to in section 6(1)(c)(iv)); or
(c)
during a period for which the employee is receiving accident compensation.
(2)
However, if an employee is receiving accident compensation, the employee accrues annual leave on any standard hours that—
(a)
the employee works while receiving that compensation; or
(b)
the employee takes as paid leave under this Act (for example, if the employee takes paid sick leave to top up their accident compensation).
(3)
Subsections (1)(c) and (2) apply even if the employer pays all or part of the accident compensation.
When employee takes annual leave
26 When employee takes annual leave
(1)
An employee and their employer must make all reasonable efforts to agree when the employee will take annual leave (but see section 28 if they are unable to agree).
(2)
An employer must not unreasonably withhold consent to an employee’s request to take accrued annual leave.
27 When employer must allow employee to take annual leave
(1)
In each 12-month period starting on an employee’s start date anniversary, the employer must allow the employee—
(a)
to take all or any of the employee’s accrued annual leave in their annual leave balance as at the relevant start date anniversary; and
(b)
to take the annual leave before the employee’s next start date anniversary; and
(c)
to take the annual leave on dates that ensure that the employee has 1 period of at least 14 consecutive days without working if—
(i)
the employee requests to do so; and
(ii)
the employee has accrued sufficient annual leave to do so.
(2)
For the purposes of subsection (1),—
(a)
a period of at least 14 consecutive days includes any days that the employee would not otherwise have worked; but
(b)
an employer must not require an employee to take annual leave on a day that the employee would not otherwise have worked.
28 When employer may require employee to take annual leave
(1)
This section applies if an employee and their employer are unable to agree under section 26 when the employee will take annual leave (despite making reasonable efforts to reach agreement).
(2)
The employer—
(a)
may require the employee to take annual leave on a standard hour determined under section 30(2), 31(2), or 32(2) (as applicable); and
(b)
must give the employee no less than 14 days’ notice in writing of a requirement to take annual leave under this section.
(3)
The maximum amount of annual leave that the employer may require the employee to take under this section is the amount of the employee’s annual leave in their annual leave balance as at the employee’s most recent start date anniversary.
29 Employer may allow employee to take annual leave in advance
An employer may allow an employee to take annual leave in advance of the employee accruing the annual leave under section 24.
30 When employee may take annual leave: standard hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement—
(a)
specifies—
(i)
the days on which the employee works standard hours; or
(ii)
a pattern of days of work on which the employee works standard hours; and
(b)
specifies the hours in each of those days that the employee works standard hours.
(2)
The employee may, in accordance with this subpart, take as annual leave any standard hours specified in their employment agreement.
31 When employee may take annual leave: standard hours specified in work roster
(1)
Subsection (2) applies if—
(a)
an employee has—
(i)
an employment agreement described in section 30(1); or
(ii)
a notional roster; and
(b)
after the employer sets a work roster,—
(i)
the employee makes a request to take annual leave in the period covered by the work roster; or
(ii)
the employee and their employer agree that the employee may take annual leave in the period covered by the work roster; and
(c)
the work roster specifies when the employee is to work standard hours.
(2)
The employee may, in accordance with this subpart, take as annual leave any standard hours specified in the work roster.
32 When employee may take annual leave: standard hours specified in notional roster
(1)
Subsection (2) applies if—
(a)
an employee has a notional roster; and
(b)
before the employer sets a work roster,—
(i)
the employee makes a request to take annual leave; or
(ii)
the employee and their employer agree that the employee may take annual leave.
(2)
The employee may, in accordance with this subpart, take as annual leave any standard hours specified in the notional roster.
33 When employee takes annual leave: general provisions
(1)
When an employee takes annual leave,—
(a)
the number of standard hours that the employee may be required to work is reduced by the number of hours taken as annual leave; and
(b)
the number of hours that the employee takes as annual leave must not exceed the number of standard hours that the employee would otherwise have worked.
(2)
If an employee’s employment agreement provides for the employee to work additional hours, the employee and their employer may agree that the employee may work additional hours in a period when the employee takes annual leave.
(3)
However,—
(a)
an employee must not take annual leave in an hour that the employee would not otherwise have worked (see sections 30, 31, and 32):
(b)
an employee is not entitled to take annual leave if the employee and their employer expect that the employee would not work on that day or on that part of the day because the employee is paid accident compensation (unless the employee and the employer have reached an agreement under section 21):
(c)
an employer must not require an employee to work additional hours on a day on which the employee takes annual leave.
34 When employee takes annual leave: part-year employees
(1)
A part-year employee and their employer may agree that the employee may take any amount of annual leave during a period of 7 or more consecutive days (see subsection (6)(b)) when the employee is not required to work standard hours.
(2)
For the purpose of agreeing when the employee may take annual leave under subsection (1), the employee and the employer must, when entering into the employment agreement, agree in writing to a roster for the employee that specifies the days of the week, and the hours in each day, when the employee may take the annual leave.
(3)
If a part-year employee takes annual leave in accordance with subsection (1), the number of hours of annual leave that the employee takes in the period must not exceed the number of hours specified in the roster for that period.
(4)
Despite section 24, an employee accrues annual leave on each hour, or each part of an hour, of annual leave taken under this section.
(5)
This section applies despite anything to the contrary in sections 30 to 32 and 33.
(6)
In this section, part-year employee means an employee who has an employment agreement that specifies—
(a)
the employee’s standard hours; and
(b)
1 or more periods of 7 or more consecutive days during the year when the employee will not be required to work standard hours and will not be paid.
Cashing up annual leave
35 Employee may request to cash up percentage of annual leave
(1)
In each 12-month period starting on an employee’s start date anniversary, the employee may request to cash up a percentage of the employee’s accrued annual leave.
(2)
The maximum percentage of annual leave that an employee may cash up in each 12-month period is 25% of the amount of an employee’s annual leave in their annual leave balance, as at the end of the day before the relevant start date anniversary.
(3)
A request—
(a)
must be in writing; and
(b)
may be made on 1 or more separate occasions until the maximum percentage of annual leave is paid out.
(4)
An employer that receives a request must—
(a)
consider the request within 14 days of receiving it; 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 122.
(5)
An employer—
(a)
may decline an employee’s request; and
(b)
is not required to give the employee a reason for declining the request.
Examples
Employee X has an annual leave balance of 280 hours as at their start date anniversary. In the following 12-month period, they may request to cash up a maximum of 70 hours’ annual leave.
Employee Q has an annual leave balance of 80 hours as at their start date anniversary. In the following 12-month period, they may request to cash up a maximum of 20 hours’ annual leave.
Compare: 2003 No 129 s 28A
36 Requirement to request cashing up annual leave prohibited
(1)
A requirement for an employee to make a request under section 35 to cash up annual leave must not be a term or condition of the employee’s employment (whether contained in an employment agreement or otherwise).
(2)
Despite subsection (1), an employment agreement may set out the process for making a request under section 35.
Compare: 2003 No 129 s 28C
37 Requirement to cash up annual leave prohibited
A requirement for an employee to cash up any of their annual leave must not be—
(a)
a term or condition of the employee’s employment (whether contained in an employment agreement or otherwise); or
(b)
raised in negotiations between the employee and their employer about the employee’s terms and conditions relating to—
(i)
leave entitlements; or
(ii)
salary and wages.
Compare: 2003 No 129 s 28D
38 Employer may adopt policy preventing payout
(1)
An employer may adopt a policy that allows the employer not to consider a request by an employee to cash up annual leave.
(2)
A policy under subsection (1) may apply to—
(a)
the whole of the employer’s operations; or
(b)
only a part or parts of the employer’s operations.
(3)
If an employer has a policy under subsection (1), section 35 does not apply in relation to any part of the employer’s operations to which the policy applies.
Compare: 2003 No 129 s 28E
39 Incorrect payment for cashed-up annual leave
(1)
If an employer incorrectly pays out annual leave, the employee’s entitlement to take the annual leave incorrectly paid out remains in force as if the payment had not been made.
(2)
For the purposes of subsection (1), an employer incorrectly pays out annual leave if—
(a)
the employer pays out annual leave that the employee did not request to cash up; or
(b)
the employer pays out more annual leave than the employee requested or was entitled to request to cash up; or
(c)
the employee requests to cash up more than the maximum percentage of annual leave permitted under section 35(2) and the employer pays that additional amount.
Compare: 2003 No 129 s 28B(2)
Relationship between annual leave and other entitlements
40 Employer may allow employee taking annual leave to take sick leave
(1)
This section applies to an employee who is taking annual leave under this subpart and who then—
(a)
becomes sick or injured; or
(b)
has a spouse, civil union partner, de facto partner, or dependant who becomes sick or injured.
(2)
An employee may, with their employer’s agreement, take as sick leave any period of sickness or injury that the employee would otherwise take as annual leave.
41 Employer must allow employee taking annual leave to take bereavement leave
(1)
This section applies to an employee who is taking annual leave under this subpart and who then suffers a bereavement as described in section 88.
(2)
The employer must allow the employee to take as bereavement leave any period related to a bereavement that the employee would otherwise take as annual leave.
Compare: 2003 No 129 s 37
42 Employer must allow employee taking annual leave to take family violence leave
(1)
This section applies to an employee who is taking annual leave under this subpart and who then becomes entitled to take family violence leave under section 102.
(2)
The employer must allow the employee to take as family violence leave any period related to the effects on the employee of family violence that the employee would otherwise take as annual leave.
Compare: 2003 No 129 s 37A
43 Sickness, injury, bereavement, or family violence arising before scheduled annual leave
(1)
This section applies if—
(a)
either—
(i)
an employee and their employer have agreed that the employee will take annual leave under this subpart; or
(ii)
an employee has been required to take annual leave under this subpart; and
(b)
before taking that annual leave, the employee—
(i)
becomes sick or injured; or
(ii)
has a spouse, civil union partner, de facto partner, or dependant who becomes sick or injured; or
(iii)
suffers a bereavement as described in section 88; or
(iv)
becomes entitled to take family violence leave under section 102.
(2)
The employer must allow the employee to take,—
(a)
as sick leave, any period of sickness or injury that the employee would otherwise take as annual leave:
(b)
as bereavement leave, any period related to the bereavement that the employee would otherwise take as annual leave:
(c)
as family violence leave, any period related to the effects on the employee of being a person affected by family violence that the employee would otherwise take as annual leave.
Compare: 2003 No 129 s 38
44 Employer may allow employee to take annual leave if sick leave, bereavement leave, or family violence leave exhausted
(1)
This section applies if—
(a)
an employee has exhausted their entitlement to sick leave under subpart 4, but then—
(i)
becomes or remains sick or injured; or
(ii)
has a spouse, civil union partner, de facto partner, or dependant who becomes or remains sick or injured; or
(b)
an employee requires more leave for a bereavement than they are entitled to under subpart 5; or
(c)
an employee requires more leave to assist the employee to deal with the effects on the employee of being a person affected by family violence than they are entitled to under subpart 6.
(2)
The employer—
(a)
must not require the employee to take any leave in the circumstances set out in subsection (1) as annual leave; but
(b)
may agree, if requested by the employee, to the leave being taken as annual leave to which the employee is entitled.
Compare: 2003 No 129 s 39
45 Relationship between annual leave and public holidays
(1)
A public holiday that occurs during an employee’s annual leave must be treated as a public holiday and not as part of the employee’s annual leave.
(2)
However, this section applies only if the public holiday would be an otherwise working day for the employee.
Compare: 2003 No 129 s 40
Annual closedowns
46 Meaning of annual closedown
In this Act, annual closedown—
(a)
means a period for which the employer—
(i)
closes or restricts all or part of the employer’s operations; and
(ii)
discontinues the work of 1 or more employees as a result of the closure or restriction; and
(iii)
requires 1 or more employees to take all or some of their annual leave; but
(b)
excludes an agreed closure under section 50.
47 Employer may have annual closedown
(1)
An employer may have an annual closedown and may have different annual closedowns for different employees.
(2)
However, an employer must not have more than 1 annual closedown starting in each calendar year for any individual employee.
48 Employer must give notice of annual closedown
(1)
If an employee’s work will be discontinued as part of an annual closedown, the employer must notify the employee of the annual closedown at least 21 days before it starts.
(2)
The notice must be in writing and must specify—
(a)
when the annual closedown will start and end; and
(b)
any requirement under section 49 for the employee to take annual leave or unpaid leave during the annual closedown; and
(c)
if the employer allows the employee to take annual leave in advance under section 26, that the employee may take annual leave in advance during the annual closedown; and
(d)
any other leave arrangements available to the employee for the annual closedown (for example, alternative leave or long-service leave).
Compare: 2003 No 129 s 32
49 Employer may require employee to take annual or unpaid leave during annual closedown
(1)
This section applies if an employer notifies an employee of an annual closedown under section 48.
(2)
The employer—
(a)
may require the employee to take annual leave during the annual closedown if it is annual leave that the employee has accrued at the time when it is taken; and
(b)
may require the employee to take unpaid leave if the following types of leave will be insufficient to cover the annual closedown:
(i)
the employee’s accrued annual leave:
(ii)
any annual leave in advance requested by the employee and agreed to by the employer:
(iii)
any other leave arrangements available to the employee (as specified in a notice under section 48).
Compare: 2003 No 129 s 32
Agreed closures
50 Employee and employer may agree to closure
(1)
An employee and their employer may agree—
(a)
that the employer may close, or restrict the operations of, all or part of the employer’s operations for a period of time; and
(b)
to discontinue, during the closure or restriction, the employee’s work as a result of the closure or restriction; and
(c)
when the closure or restriction will start and end; and
(d)
the leave arrangements for the employee during that period.
(2)
An agreement under subsection (1)—
(a)
must be entered into in writing at least 14 days before the start of the closure or restriction; and
(b)
may relate to any period (regardless of how often, when, or for how long the employee’s work has previously been discontinued under this subpart).
Subpart 2—Public holidays
51 Application of this subpart
This subpart applies to an employee who works—
(a)
standard hours:
(b)
standard hours and additional hours:
(c)
casual hours.
Days that are public holidays
52 Days that are public holidays
(1)
The following 12 days are public holidays:
(a)
New Year’s Day:
(b)
2 January:
(c)
Waitangi Day:
(d)
Good Friday:
(e)
Easter Monday:
(f)
Anzac Day:
(g)
the birthday of the reigning Sovereign (observed on the first Monday in June):
(h)
Te Rā Aro ki a Matariki/Matariki Observance Day (see Schedule 1 of Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/the Te Kāhui o Matariki Public Holiday Act 2022):
(i)
Labour Day (being the fourth Monday in October):
(j)
Christmas Day:
(k)
Boxing Day:
(l)
the day of the anniversary of a province or the day locally observed as that day.
(2)
If 2 or more of the public holidays specified in subsection (1) fall on the same day, the public holidays must, for the purposes of this subpart, be treated as 1 day.
Compare: 1981 No 15 s 7A(2); 2003 No 129 s 44
Entitlement to public holidays
53 Entitlement to public holidays
(1)
An employee is entitled, in accordance with this subpart, to a public holiday specified in section 52 if the holiday falls on a day that is an otherwise working day for the employee.
(2)
Public holidays are in addition to any other type of leave to which an employee is entitled under this Act or otherwise.
Compare: 1981 No 15 s 7A(1); 2003 No 129 s 46
54 When employee required to work on public holiday
An employer may require an employee to work on a public holiday only if—
(a)
the public holiday falls on a day that, under section 13, is an otherwise working day for the employee; and
(b)
the employee’s employment agreement provides that the employer may require the employee to work on the public holiday.
Compare: 2003 No 129 s 47
55 Compliance with section 53
(1)
If a public holiday falls on a day that is not an otherwise working day for an employee, section 53 is complied with if—
(a)
the employee does not work on that day; or
(b)
the employee works on any part of the day and the employer pays the employee in accordance with section 121.
(2)
If a public holiday falls on a day that is an otherwise working day for an employee, section 53 is complied with—
(a)
if—
(i)
the employee does not work on that day; and
(ii)
the employer pays the employee a leave payment under section 119; or
(b)
if—
(i)
the employee works on any part of that day; and
(ii)
the employer pays the employee in accordance with section 121; and
(iii)
the employee accrues alternative leave in accordance with section 63.
Compare: 2003 No 129 s 48
Transferring public holidays
56 Transferring part of public holiday
When employee and employer may agree to transfer 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 public holidays.
(2)
The employee and their employer may agree in writing (in an employment agreement or otherwise) that part of 1 or both days is to be treated as not part of a public holiday and that,—
(a)
if the agreement relates to only 1 day that is a public holiday, a period of 24 hours is to be treated as the public holiday under this subpart if the period—
(i)
is to start or finish during the public holiday; and
(ii)
includes the period from when the employee is to start work to when the employee is to finish work; or
(b)
if the agreement relates to 2 days that are public holidays, 2 separate periods of 24 hours are to be treated as the public holidays if each period—
(i)
is to start or finish during the public holidays; and
(ii)
includes the period from when the employee is to start work to when the employee is to finish work.
(3)
However, an agreement under subsection (2) has no effect if the purpose of the transfer is to avoid the employee’s entitlements under sections 63 and 121 for working on a public holiday, although the transfer may have that effect.
Effect of transfer
(4)
If an agreement to transfer part of a public holiday applies, the employee’s entitlements under sections 63 and 121 apply only if the employee works during the period of 24 hours, or 2 separate periods of 24 hours, to which that part of the public holiday has been transferred.
Agreement requirements
(5)
An agreement under subsection (2) must—
(a)
specify—
(i)
the part of each day that is not to be treated as part of a public holiday; and
(ii)
the period or periods of 24 hours that are to be treated as public holidays; and
(b)
set out the effect of the transfer under subsection (4), unless it is set out in the employee’s employment agreement or a workplace policy.
(6)
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 employee and their employer can agree that the period from 12 am to 6 am on Anzac Day will not be treated as a public holiday and instead agree that the period of 24 hours that starts at 10 pm on Anzac Day will be treated as the public holiday.
Compare: 2003 No 129 s 44A
57 Transferring whole public holiday
When employee and employer may agree to transfer public holiday
(1)
An employee and their employer may agree in writing (whether in an employment agreement or otherwise) that the employee will observe a public holiday on another calendar day or during another period of 24 hours (a transfer).
(2)
However, an agreement under subsection (1) has effect only if—
(a)
the agreement is entered into at the request of the employee and not the employer; and
(b)
the public holiday is an otherwise working day for the employee; and
(c)
the employer has not indicated an intention to require the employee to work on the public holiday under section 54; and
(d)
the day or period to which the public holiday is transferred—
(i)
is an otherwise working day for the employee; and
(ii)
is not (wholly or partly) another public holiday.
(3)
For the purposes of subsection (2), whether a day or period is an otherwise working day for the employee under section 13 must be determined—
(a)
as at the time at which the agreement is entered into; or
(b)
when a new day or period is substituted under subsection (6).
Effect of transfer
(4)
If a transfer applies, the effect of the transfer is that the day or period to which the public holiday is transferred must be treated as the employee’s public holiday under this subpart.
Agreement requirements
(5)
An agreement under subsection (1) must—
(a)
specify—
(i)
the public holiday being transferred; and
(ii)
the calendar day or period of 24 hours to which it is transferred or information from which the day or period can be identified; and
(b)
set out the effect of the transfer under subsection (4), unless it is set out in the employee’s employment agreement or a workplace policy.
(6)
If, after the agreement is entered into but before the start of the day or period to which the public holiday is transferred (the previously agreed day or period), the previously agreed day or period ceases to be an otherwise working day for the employee due to a change in the days on which the employee would work, or a pattern of days on which the employee would work, as specified in the employee’s employment agreement,—
(a)
the employee and the employer may agree in writing to substitute a different day or period (a new day or period) that meets the criteria in subsection (2)(d) for the previously agreed day or period; and
(b)
the application of this section is modified accordingly.
(7)
An agreement under this section—
(a)
may be made in relation to 1 or more public holidays; but
(b)
must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year.
Compare: 2003 No 129 s 44B
58 Employer may have policy preventing transfer
(1)
An employer may adopt a policy that allows the employer not to enter into agreements to transfer all or part of a public holiday under section 56 or 57.
(2)
A policy under subsection (1) may apply—
(a)
to the whole of the employer’s operations; or
(b)
only to a part or parts of the employer’s operations.
(3)
If an employer adopts a policy under subsection (1), section 56 or 57 does not apply in relation to each part of the employer’s operations to which the policy applies.
Compare: 2003 No 129 s 44C
59 Observance of public holidays over Christmas and New Year
(1)
For the purposes of this subpart, if any of the public holidays listed in section 52(1)(a), (b), (j), or (k)—
(a)
falls on a Saturday and the day is an otherwise working day for the employee, the public holiday must be treated as falling on that day:
(b)
falls on a Saturday and the day is not an otherwise working day for the employee, the public holiday must be treated as falling on the following Monday:
(c)
falls on a Sunday and the day is an otherwise working day for the employee, the public holiday must be treated as falling on that day:
(d)
falls on a Sunday and the day is not an otherwise working day for the employee, the public holiday must be treated as falling on the following Tuesday.
(2)
This section does not entitle an employee to more than 4 public holidays for the days listed in section 52(1)(a), (b), (j), and (k).
Compare: 2003 No 129 s 45
60 Observance of Waitangi Day and Anzac Day public holidays
(1)
For the purposes of this subpart, if Waitangi Day or Anzac Day—
(a)
falls on a Saturday or a Sunday, and the day is an otherwise working day for the employee, the public holiday must be treated as falling on that day:
(b)
falls on a Saturday or a Sunday, and the day is not an otherwise working day for the employee, the public holiday must be treated as falling on the following Monday.
(2)
This section does not entitle an employee to more than 1 public holiday for Waitangi Day or more than 1 public holiday for Anzac Day.
Compare: 2003 No 129 s 45A
Relationship between public holidays and other entitlements
61 Sickness, injury, bereavement, or family violence on public holiday
(1)
This section applies to an employee who works—
(a)
standard hours only; or
(b)
standard hours and additional hours; or
(c)
casual hours.
(2)
However, this section applies in relation to a public holiday only if the public holiday is an otherwise working day for the employee.
When employee does not work on public holiday
(3)
Subsection (4) applies to an employee who is required, or has agreed, to work on a public holiday but who does not work on the day because—
(a)
the employee—
(i)
becomes or remains sick or injured; or
(ii)
has a spouse, civil union partner, de facto partner, or dependant who becomes or remains sick or injured; or
(b)
the employee takes bereavement leave under subpart 5; or
(c)
the employee takes family violence leave under subpart 6.
(4)
If this subsection applies,—
(a)
the public holiday must continue to be treated as a public holiday and not as sick leave, bereavement leave, or family violence leave for the employee; and
(b)
the employee—
(i)
must be paid a leave payment for the day in accordance with section 119 and is not entitled to be paid in accordance with section 121; and
(ii)
is not entitled to accrue alternative leave under section 63.
When employee works part day on public holiday
(5)
Subsection (6) applies to an employee who is required, or has agreed, to work on a public holiday but who works a part day on the public holiday because—
(a)
the employee—
(i)
becomes or remains sick or injured; or
(ii)
has a spouse, civil union partner, de facto partner, or dependant who becomes or remains sick or injured; or
(b)
the employee takes bereavement leave under subpart 5; or
(c)
the employee takes family violence leave under subpart 6.
(6)
If this subsection applies,—
(a)
in relation to the hours worked during the part day,—
(i)
those hours must continue to be treated as a public holiday and not as sick leave, bereavement leave, or family violence leave for the employee; and
(ii)
the employee—
(A)
must be paid for the hours worked on the part day in accordance with section 121; and
(B)
is entitled to accrue alternative leave for the hours worked on the part day under section 63; and
(b)
in relation to the hours not worked during the part day,—
(i)
those hours must be treated as a public holiday and not as sick leave, bereavement leave, or family violence leave for the employee; and
(ii)
the employee—
(A)
must be paid for the hours not worked on the part day, in accordance with section 119; and
(B)
is not entitled to accrue alternative leave for the hours not worked on the part day under section 63.
(7)
However, the maximum number of hours that an employee may be paid under subsection (6)(b)(ii)(A) is the number of hours calculated in accordance with section 15, less any hours that the employee worked during the part day.
Compare: 2003 No 129 s 61A
Subpart 3—Alternative leave for working public holiday
62 Application of this subpart
This subpart applies to an employee who works—
(a)
standard hours:
(b)
standard hours and additional hours:
(c)
casual hours.
Entitlement to and accrual of alternative leave
63 Employee’s entitlement to accrue alternative leave
(1)
An employee accrues alternative leave in accordance with this subpart if—
(a)
a public holiday falls on a day that is an otherwise working day for the employee; and
(b)
1 or both of the following apply:
(i)
the employee works on any part of that day:
(ii)
the employee is on call on any part of that day.
(2)
An employee accrues alternative leave at the following rates:
(a)
for each hour that the employee works on a public holiday, an hour:
(b)
for each part of an hour that the employee works on a public holiday, that part of an hour:
(c)
if the employee’s employment agreement provides that the employer may require the employee to work on a public holiday under section 54 and the employee is on call, the amount of alternative leave calculated under subsections (3) and (4).
(3)
For the purposes of subsection (2)(c), the amount of alternative leave that an employee accrues when the employee is on call is,—
(a)
if the employee is not called to work on the public holiday,—
(i)
for each hour that the employee is on call, an hour:
(ii)
for each part of an hour that the employee is on call, that part of an hour:
(b)
if the employee is called to work on the public holiday, the sum of the following hours:
(i)
for each hour that the employee is on call but does not work, an hour; and
(ii)
for each part of an hour that the employee is on call but does not work, that part of an hour; and
(iii)
for each hour that the employee works on that day, an hour; and
(iv)
for each part of an hour that the employee works on that day, that part of an hour.
(4)
However, the maximum amount of alternative leave that the employee accrues under subsection (3)(a) and (b)(i) and (ii) is the number of hours that the employee would otherwise have worked on the public holiday, calculated in accordance with section 15.
(5)
An employee’s entitlement to accrued alternative leave remains in force until—
(a)
the employee has taken the alternative leave; or
(b)
the employee has been paid for the alternative leave in accordance with section 122 or 123.
Compare: 2003 No 129 s 56
64 When employee not entitled to accrue alternative leave
An employee is not entitled to accrue alternative leave under this subpart if the employee works for the employer only on public holidays.
Compare: 2003 No 129 s 56(4)
How employee takes alternative leave
65 How employee may take alternative leave
(1)
An employee and their employer must agree when the employee will take alternative leave.
(2)
The employer must not unreasonably withhold their consent to the employee taking the alternative leave.
(3)
If the employee and the employer are unable to agree under subsection (1) on when the employee takes alternative leave,—
(a)
the employee must take the leave on a day, or a part day, determined, on a reasonable basis, by the employer; and
(b)
the employer must give the employee at least 14 days’ notice of the day, or the part day, on which the employee is to take the alternative leave.
(4)
However, the employee and the employer may only agree, or the employer may only determine, that the employee takes alternative leave on a day, or a part day, that—
(a)
the employee may work under their employment agreement; and
(b)
is not a public holiday.
66 When employee takes alternative leave: general provisions
(1)
This section applies to an employee who works—
(a)
standard hours only; or
(b)
standard hours and additional hours.
(2)
When the employee takes alternative leave during a period,—
(a)
the number of standard hours that the employee may be required to work in that period is reduced by the number of hours taken as alternative leave; and
(b)
the number of hours that the employee takes as alternative leave must not exceed the number of standard hours that the employee would otherwise have worked in that period.
(3)
If an employee’s employment agreement provides for the employee to work additional hours, the employee and their employer may agree that the employee may work additional hours in a period when the employee takes alternative leave.
(4)
However, an employer must not require an employee to work additional hours on a day on which the employee takes alternative leave.
Cashing up alternative leave
67 Employee may request to cash up alternative leave
(1)
An employee may request to cash up all or any of the employee’s alternative leave.
(2)
A request—
(a)
must be made in writing to the employee’s employer; and
(b)
may be made on 1 or more separate occasions until the alternative leave is paid out.
(3)
An employer that receives a request must—
(a)
consider the request within 14 days of receiving it; 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 122.
(4)
An employer—
(a)
may decline an employee’s request; and
(b)
is not required to give the employee a reason for declining the request.
Compare: 2003 No 129 s 61
68 Requirement to request cashing up alternative leave prohibited
(1)
A requirement for an employee to make a request under section 67 to cash up alternative leave must not be a term or condition of the employee’s employment (whether contained in an employment agreement or otherwise).
(2)
Despite subsection (1), an employment agreement may set out the process for making a request under section 67.
69 Requirement to cash up alternative leave prohibited
A requirement for an employee to cash up any or all of their alternative leave must not be—
(a)
a term or condition of the employee’s employment (whether contained in an employment agreement or otherwise); or
(b)
raised in negotiations between the employee and their employer about the employee’s terms and conditions relating to—
(i)
leave entitlements; or
(ii)
salary or wages.
70 Employer may adopt policy preventing payout
(1)
An employer may adopt a policy that allows the employer not to consider a request by an employee to cash up alternative leave.
(2)
A policy under subsection (1) may apply to—
(a)
the whole of the employer’s operations; or
(b)
only a part or parts of the employer’s operations.
(3)
If an employer has a policy under subsection (1), section 67 does not apply in relation to any part of the employer’s operations to which the policy applies.
71 Incorrect payment for cashed-up alternative leave
(1)
If an employer incorrectly pays out alternative leave, the employee’s entitlement to take alternative leave incorrectly paid out remains in force as if the payment had not been made.
(2)
For the purposes of subsection (1), an employer incorrectly pays out alternative leave if—
(a)
the employer pays out alternative leave that the employee did not request to cash up; or
(b)
the employer pays out more alternative leave than the employee requested or was entitled to request.
Subpart 4—Sick leave
72 Application of this subpart
(1)
This subpart applies to an employee who works—
(a)
standard hours:
(b)
standard hours and additional hours.
(2)
This subpart does not apply to any casual hours that the employee works.
Entitlement to and accrual of sick leave
73 Employee’s entitlement to accrue sick leave
(1)
An employee accrues not less than 0.0385 of an hour of sick leave for each standard hour or part of a standard hour.
(2)
For the purpose of determining the sick leave that an employee accrues when they are on leave under the Parental Leave and Employment Protection Act 1987, the employee’s standard hours under section 6(1)(c)(iv) are,—
(a)
if, in the 3 months before the employee starts their leave under that Act, the employee and their employer agree a temporary change to the employee’s standard hours, the employee’s standard hours immediately before the date on which the temporary change commences; or
(b)
in all other cases, the employee’s standard hours immediately before the employee starts their leave under that Act.
(3)
For the purpose of determining the sick leave that an ASE accrues, the ASE accrues sick leave for each standard hour, or part of a standard hour, in the ASE’s pay period and not for each standard hour, or part of a standard hour, that the ASE is paid for in a pay period.
(4)
In subsection (2)(a), temporary change means a change that—
(a)
increases or decreases the employee’s standard hours; and
(b)
is in place for no more than 3 months.
74 When employee does not accrue sick leave
(1)
For the purpose of calculating an employee’s sick leave under section 73, an employee does not accrue sick leave—
(a)
for an hour, or part of an hour, that the employee takes as leave or as an absence from work described in section 6(1)(c)(iii) if the employee and their employer agree that the employee does not accrue sick leave for that leave or absence from work; or
(b)
for an hour, or part of an hour, that the employee takes as unpaid leave (other than any unpaid leave referred to in section 6(1)(c)(iv)); or
(c)
during a period for which the employee is receiving accident compensation.
(2)
However, if an employee is receiving accident compensation, the employee accrues sick leave on any standard hours that—
(a)
the employee works while receiving that compensation; or
(b)
the employee takes as paid leave under this Act (for example, if the employee takes paid sick leave to top up their accident compensation).
(3)
Subsections (1)(c) and (2) apply even if the employer pays all or part of the accident compensation.
75 Maximum level of accrued sick leave
(1)
An employee may accrue sick leave to a maximum of 160 hours.
(2)
If an employee accrues 160 hours of sick leave, the employee is not entitled to accrue any further sick leave until their accrued sick leave is less than 160 hours.
(3)
This section does not prevent an employee and their employer from agreeing that the employee may be entitled to accrue additional sick leave.
76 Employer may allow employee to take sick leave in advance
An employer may allow an employee to take sick leave in advance of the employee accruing the sick leave under section 73.
77 Sick leave need not be paid out when employment ends
An employee is not entitled to be paid out for any sick leave that the employee has accrued, but not taken, before the date on which the employee’s employment ends.
Compare: 2003 No 129 s 67
How employee takes sick leave
78 Employee must notify employer of intention to take leave
An employee who intends to take sick leave must notify their employer of that intention—
(a)
as early as possible before the employee is due to start work on the day on which the employee intends to take sick leave; or
(b)
if that is not practicable, as early as possible after that time.
Compare: 2003 No 129 s 64
79 Proof of sickness or injury
(1)
An employer may require an employee to provide proof of sickness or injury for sick leave taken under sections 81 to 85 if the sickness or injury that gave rise to the leave lasts for a period of 3 or more consecutive calendar days (or parts of a calendar day), regardless of whether the employee would otherwise work on those days.
(2)
Despite subsection (1),—
(a)
an employer may require an employee to provide proof of sickness or injury within 3 consecutive calendar days of the leave commencing if the employer—
(i)
informs the employee as early as possible that the proof is required; and
(ii)
agrees to meet the employee’s reasonable expenses in obtaining the proof:
(b)
an employee and their employer may agree that the employee will provide proof of sickness or injury for sick leave provided to the employee in addition to the entitlement set out in section 73.
(3)
However,—
(a)
this section does not prevent an employer (if the employer is otherwise legally permitted to impose such a requirement) from requiring an employee to establish that there are no relevant health and safety reasons or hygiene reasons that would prevent the employee from working:
(b)
subsections (1) and (2)(a) do not give the employer the right to require the employee to obtain the proof from a person specified by the employer.
(4)
For the purposes of this section,—
health practitioner has the meaning set out in section 5(1) of the Health Practitioners Competence Assurance Act 2003
proof of sickness or injury may include a certificate from a health practitioner stating that—
(a)
the employee is not fit to attend work because the employee is sick or injured; or
(b)
the employee cannot attend work because—
(i)
the employee’s spouse, civil union partner, or de facto partner is sick or injured:
(ii)
a person who depends on the employee for care is sick or injured.
Compare: 2003 No 129 s 68
When employee takes sick leave
80 When employee may take sick leave
An employee who has accrued sick leave is entitled to take sick leave if—
(a)
the employee is sick or injured; or
(b)
the employee’s spouse, civil union partner, or de facto partner is sick or injured; or
(c)
a person who depends on the employee for care is sick or injured.
Compare: 2003 No 129 s 65(1)
81 When employee may take sick leave: standard hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement—
(a)
specifies—
(i)
the days on which the employee works standard hours; or
(ii)
a pattern of days of work on which the employee works standard hours; and
(b)
specifies the hours in each of those days that the employee works standard hours.
(2)
The employee may, in accordance with this subpart, take as sick leave any standard hours specified in the employment agreement.
82 When employee may take sick leave: standard hours specified in work roster
(1)
Subsection (2) applies if—
(a)
an employee has—
(i)
an employment agreement described in section 81(1); or
(ii)
a notional roster; and
(b)
the employee notifies their employer of their intention to take sick leave after the employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee is to work standard hours.
(2)
The employee may, in accordance with this subpart, take as sick leave any standard hours specified in the work roster.
83 When employee takes sick leave: standard hours specified in notional roster
(1)
Subsection (2) applies if—
(a)
an employee has a notional roster; and
(b)
the employee notifies their employer of their intention to take sick leave before the employer sets a work roster that specifies when the employee is to work standard hours during the period in which the notified leave falls.
(2)
The employee may, in accordance with this subpart, take as sick leave any standard hours specified in the notional roster.
84 When employee takes sick leave: additional hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement provides for the employee to work additional hours under an availability provision.
(2)
The employee may, in accordance with this subpart, take as sick leave any hour that the employee would have been required to work as an additional hour under an availability provision in the employee’s employment agreement.
85 When employee takes sick leave: additional hours specified in work roster
(1)
Subsection (2) applies if—
(a)
section 84 does not apply; and
(b)
an employee notifies their employer of their intention to take sick leave after their employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee and the employer have agreed the employee is to work additional hours.
(2)
The employee may, in accordance with this subpart, take as sick leave any additional hours specified in the work roster.
86 When employee not entitled to take sick leave
(1)
Despite sections 81 to 85, an employee is not entitled to take sick leave if the employee and their employer expect that the employee would not work on that day or on that part of the day because the employee is—
(a)
on parental leave under the Parental Leave and Employment Protection Act 1987; or
(b)
on volunteers leave under the Volunteers Employment Protection Act 1973; or
(c)
paid accident compensation (unless the employee and the employer have reached an agreement under section 21); or
(d)
on unpaid leave.
(2)
For the purposes of subsection (1)(d), unpaid leave does not include any unpaid leave that the employee takes during an annual closedown under section 47.
Subpart 5—Bereavement leave
87 Application of this subpart
This subpart applies to an employee who works—
(a)
standard hours:
(b)
standard hours and additional hours:
(c)
casual hours.
Entitlement to bereavement leave
88 Employee’s entitlement to bereavement leave
(1)
An employee is entitled to take bereavement leave in accordance with this subpart if the employee suffers a bereavement.
(2)
An employee suffers a bereavement—
(a)
on the death of the employee’s—
(i)
spouse, civil union partner, or de facto partner:
(ii)
parent:
(iii)
child:
(iv)
brother or sister:
(v)
grandparent:
(vi)
grandchild:
(vii)
spouse’s, civil union partner’s, or de facto partner’s parent; or
(b)
on the death of another 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 ending of the employee’s pregnancy by way of miscarriage or stillbirth; or
(d)
on the ending of another person’s pregnancy by way of miscarriage or stillbirth, if the employee—
(i)
is the person’s spouse, civil union partner, or de facto partner; or
(ii)
is the person’s former spouse, civil union partner, or de facto 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, civil union partner, or de facto 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 Contraception, Sterilisation, and Abortion Act 1977
stillbirth means a stillbirth within the meaning of the Births, Deaths, Marriages, and Relationships Registration Act 2021 other than as a result of abortion services provided in accordance with the Contraception, Sterilisation, and Abortion Act 1977.
Compare: 2003 No 129 s 69
89 When entitlement to bereavement leave commences
An employee is entitled, under this subpart, to bereavement leave on and from their start date.
How employee takes bereavement leave
90 Employee must notify employer of intention to take leave
An employee who intends to take bereavement leave must notify their employer of that intention—
(a)
as early as possible before the employee is due to start work on the day on which the employee intends to take bereavement leave; or
(b)
if that is not practicable, as early as possible after that time.
Compare: 1981 No 15 s 30A(5); 2003 No 129 s 64
91 Duration of bereavement leave
(1)
An employee may take—
(a)
3 days’ bereavement leave for a bereavement described in section 88(2)(a), (c), or (d); and
(b)
1 day’s bereavement leave for a bereavement described in section 88(2)(b).
(2)
An employee who suffers more than 1 bereavement at the same time may take the amount of bereavement leave specified in subsection (1) in respect of each bereavement.
(3)
For the purposes of this subpart, if an employee’s work period begins on one calendar day and continues into the next consecutive day, the work period must be treated as 1 day.
Compare: 2003 No 129 s 70
92 Bereavement leave may be taken in whole or part days
(1)
An employee may take bereavement leave to which they are entitled in whole or part days.
(2)
For the purposes of subsection (1), the part of a day taken off work must be treated as a proportion of 1 day of leave, calculated using the following formula:
(t − h) ÷ t = p
where—
- t
is the number of hours that the employee would have worked, or taken as other paid or unpaid leave, on the relevant day had they not taken the bereavement leave
- h
is the number of hours that the employee works, or takes as other paid or unpaid leave, on the relevant day
- p
is the proportion of 1 day of leave.
(3)
For the purposes of item t of the formula in subsection (2), the number of hours that an employee would have worked on the relevant day is—
(a)
the number of hours that the employee would have worked as determined under 1 or more of the following sections:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
section 98; or
(b)
the number of hours specified in any agreement entered into by the employee and their employer after the latest of—
(i)
the date on which the employee and their employer agree on the employment agreement; and
(ii)
the date of a notional roster; and
(iii)
the date on which the employer sets a work roster for the relevant day.
(4)
Despite subsection (3)(b), an employee and their employer may agree that the employee will take a period of paid bereavement leave that does not include hours for which the employee is rostered to work.
When employee takes bereavement leave
93 When employee may take bereavement leave: standard hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement—
(a)
specifies—
(i)
the days on which the employee works standard hours; or
(ii)
a pattern of days of work on which the employee works standard hours; and
(b)
specifies the hours in each of those days that the employee works standard hours.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any standard hours specified in the employment agreement.
94 When employee may take bereavement leave: standard hours specified in work roster
(1)
Subsection (2) applies if—
(a)
an employee has—
(i)
an employment agreement described in section 93(1); or
(ii)
a notional roster; and
(b)
the employee notifies their employer of their intention to take bereavement leave after the employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee is to work standard hours.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any standard hours specified in the work roster.
95 When employee may take bereavement leave: standard hours specified in notional roster
(1)
Subsection (2) applies if—
(a)
an employee has a notional roster; and
(b)
the employee notifies their employer of their intention to take bereavement leave before the employer sets a work roster that specifies when the employee is to work standard hours during the period in which the notified leave falls.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any standard hours specified in the notional roster.
96 When employee may take bereavement leave: additional hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement provides for the employee to work additional hours under an availability provision.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any hour that the employee would have been required to work as an additional hour under an availability provision in the employee’s employment agreement.
97 When employee may take bereavement leave: additional hours specified in work roster
(1)
Subsection (2) applies if—
(a)
section 96 does not apply; and
(b)
the employee notifies their employer of their intention to take bereavement leave after their employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee and the employer have agreed the employee is to work additional hours.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any additional hours specified in the work roster.
98 When employee may take bereavement leave: casual hours
(1)
Subsection (2) applies if an employee works casual hours and—
(a)
the employee notifies their employer of their intention to take bereavement leave after the employer sets a work roster that specifies when the employee is to work casual hours during the period in which the notified leave falls; and
(b)
the employee has agreed to work their casual hours as specified in the work roster.
(2)
The employee may, in accordance with this subpart, take as bereavement leave any casual hours specified in the work roster.
99 When employee not entitled to take bereavement leave
(1)
Despite sections 93 to 98, an employee is not entitled to take bereavement leave on a day if the employee and their employer expect that the employee would not work on that day or on that part of the day because the employee is—
(a)
on parental leave under the Parental Leave and Employment Protection Act 1987; or
(b)
on volunteers leave under the Volunteers Employment Protection Act 1973; or
(c)
paid accident compensation; or
(d)
on unpaid leave.
(2)
For the purposes of subsection (1)(d), unpaid leave does not include any unpaid leave that the employee takes during an annual closedown under section 47.
Subpart 6—Family violence leave
100 Application of this subpart
This subpart applies to an employee who works—
(a)
standard hours:
(b)
standard hours and additional hours:
(c)
casual hours.
101 Meaning of person affected by family violence
(1)
In this subpart, person affected by family violence means a person who is either or both of the following:
(a)
a person against whom any other person is inflicting, or has inflicted, family violence:
(b)
a person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, family violence.
(2)
In this section, child has the meaning set out in section 8 of the Family Violence Act 2018.
Compare: 2003 No 129 s 72B
Entitlement to family violence leave
102 Employee’s entitlement to family violence leave
(1)
An employee is entitled to take family violence leave in accordance with this subpart—
(a)
if the employee is a person affected by family violence; and
(b)
to assist the employee to deal with the effects on them of being a person affected by family violence.
(2)
The employee may take family violence leave under subsection (1)—
(a)
regardless of how long ago the family violence occurred; and
(b)
even if the family violence occurred before the person became an employee.
Compare: 2003 No 129 s 72C
103 When entitlement to family violence leave arises
(1)
An employee is entitled, in accordance with this subpart, to family violence leave on and from their start date.
(2)
An employee is entitled to family violence leave for—
(a)
the 12-month period starting on their start date; and
(b)
each subsequent 12-month period starting on their start date anniversary.
Compare: 2003 No 129 s 72D
104 Employer may allow employee to take family violence leave in advance
An employer may allow an employee to take family violence leave in advance of the employee becoming entitled to the leave under section 103(2)(b).
Compare: 2003 No 129 s 72D
105 Family violence leave need not be paid out when employment ends
An employee is not entitled to be paid out for any family violence leave that the employee has not taken before the date on which the employee’s employment ends.
Compare: 2003 No 129 s 72F
How employee takes family violence leave
106 Employee must notify employer of intention to take leave
An employee who intends to take family violence leave must notify their employer of that intention—
(a)
as early as possible before the employee is due to start work on the day on which the employee intends to take family violence leave; or
(b)
if that is not practicable, as early as possible after that time.
Compare: 2003 No 129 s 72E
107 Proof of family violence
An employer may require an employee who takes family violence leave under section 102 to produce proof that they are a person affected by family violence.
Compare: 2003 No 129 s 72G
108 Duration of family violence leave
(1)
An employee may take up to 10 days’ family violence leave in each 12-month period specified in section 103(2).
(2)
An employee cannot carry forward any family violence leave not taken in any of those 12-month periods.
(3)
For the purposes of this subpart, if an employee’s work period begins on one calendar day and continues into the next day, the work period must be treated as one day.
Compare: 2003 No 129 s 72H
109 Family violence leave may be taken in whole or part days
(1)
An employee may take family violence leave to which they are entitled in whole days or part days.
(2)
For the purposes of subsection (1), the part of a day taken off work must be treated as a proportion of 1 day of leave, calculated using the following formula:
(t − h) ÷ t = p
where—
- t
is the number of hours that the employee would have worked, or taken as other paid or unpaid leave, on the relevant day had they not taken the family violence leave
- h
is the number of hours that the employee works, or takes as other paid or unpaid leave, on the relevant day
- p
is the proportion of 1 day of leave.
(3)
For the purposes of item t of the formula in subsection (2), the number of hours that an employee would have worked on the relevant day is—
(a)
the number of hours that the employee would have worked as determined under 1 or more of the following sections:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
section 115; or
(b)
the number of hours specified in any agreement entered into by the employee and their employer after the latest of—
(i)
the date on which the employee and the employer agree on the employment agreement; and
(ii)
the date of a notional roster; and
(iii)
the date on which the employer sets a work roster for the relevant day.
(4)
Despite subsection (3)(b), an employee and their employer may agree that the employee will take a period of paid family violence leave that does not include hours for which the employee is rostered to work.
When employee takes family violence leave
110 When employee may take family violence leave: standard hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement—
(a)
specifies—
(i)
the days on which the employee works standard hours; or
(ii)
a pattern of days of work on which the employee works standard hours; and
(b)
specifies the hours in each of those days that the employee works standard hours.
(2)
The employee may, in accordance with this subpart, take as family violence leave any standard hours specified in the employment agreement.
111 When employee may take family violence leave: standard hours specified in work roster
(1)
Subsection (2) applies if—
(a)
an employee has—
(i)
an employment agreement described in section 110(1); or
(ii)
a notional roster; and
(b)
the employee notifies their employer of their intention to take family violence leave after the employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee is to work standard hours.
(2)
The employee may, in accordance with this subpart, take as family violence leave any standard hours specified in the work roster.
112 When employee may take family violence leave: standard hours specified in notional roster
(1)
Subsection (2) applies if—
(a)
an employee has a notional roster; and
(b)
the employee notifies their employer of their intention to take family violence leave before the employer sets a work roster that specifies when the employee is to work standard hours during the period in which the notified leave falls.
(2)
The employee may, in accordance with the subpart, take as family violence leave any standard hours specified in the notional roster.
113 When employee may take family violence leave: additional hours specified in employment agreement
(1)
Subsection (2) applies if an employee’s employment agreement provides for the employee to work additional hours under an availability provision.
(2)
The employee may, in accordance with this subpart, take as family violence leave any hour that the employee would have been required to work as an additional hour under an availability provision in the employee’s employment agreement.
114 When employee may take family violence leave: additional hours specified in work roster
(1)
Subsection (2) applies if—
(a)
section 113 does not apply; and
(b)
the employee notifies their employer of their intention to take family violence leave after their employer sets a work roster for the period in which the notified leave falls; and
(c)
the work roster specifies when the employee and the employer have agreed the employee is to work additional hours.
(2)
The employee may, in accordance with this subpart, take as family violence leave any additional hours specified in the work roster.
115 When employee may take family violence leave: casual hours
(1)
Subsection (2) applies if an employee works casual hours and—
(a)
the employee notifies their employer of their intention to take family violence leave after the employer sets a work roster that specifies when the employee is to work casual hours during the period in which the notified leave falls; and
(b)
the employee has agreed to work their casual hours as specified in the work roster.
(2)
The employee may, in accordance with this subpart, take as family violence leave any casual hours specified in the work roster.
116 When employee not entitled to take family violence leave
(1)
Despite sections 110 to 115, an employee is not entitled to take family violence leave if the employee and their employer expect that the employee would not work on that day or on part of the day because the employee is—
(a)
on parental leave under the Parental Leave and Employment Protection Act 1987; or
(b)
on volunteers leave under the Volunteers Employment Protection Act 1973; or
(c)
paid accident compensation (unless the employee and the employer have reached an agreement under section 21); or
(d)
on unpaid leave.
(2)
For the purposes of subsection (1)(d), unpaid leave does not include any unpaid leave that the employee takes during an annual closedown under section 47.
Subpart 7—Leave and other payments
117 Application of this subpart
This subpart applies to an employee who works—
(a)
standard hours only:
(b)
standard hours and additional hours:
(c)
casual hours.
118 Interpretation of this subpart
(1)
In this subpart, unless the context otherwise requires,—
average hourly rate for piece work has the meaning set out in subsection (2)
leave hourly rate,—
(a)
for the purposes of calculating a leave payment under section 120, means,—
(i)
for an employee who is paid a salary (other than an ASE), the amount of the employee’s salary, including any compensation payable under an availability provision, that is attributable to 1 standard hour’s work:
(ii)
for an employee who is paid wages,—
(A)
for leave taken under section 34, the lowest hourly rate payable under the employee’s employment agreement; or
(B)
in all other cases, the lowest hourly rate payable under the employee’s employment agreement for the shift during which the leave is taken:
(iii)
for an ASE, the portion of the ASE’s salary paid in the pay period in which the leave is taken divided by the number of standard hours in that pay period:
(b)
for the purposes of calculating payment for cashed-up annual leave or alternative leave under section 122, or under section 123 if employment ends, means,—
(i)
for an employee who is paid a salary, the amount of the employee’s salary, including any compensation payable under an availability provision, that is attributable to 1 standard hour’s work:
(ii)
for an employee who is paid wages, the lowest hourly rate payable under the employee’s employment agreement; but
(c)
for the purposes of calculations under paragraphs (a) and (b), does not include the following:
(i)
LCPs:
(ii)
allowances:
(iii)
productivity-based or incentive payments (including commission)
leave payment means an amount payable to an employee under section 119
leave payment rate, for the purposes of calculating the amount payable to an employee under sections 120, 122, and 123, means,—
(a)
if the employee is paid partially or wholly by piece work, the greater of—
(i)
the total of the leave hourly rate (if any) and the average hourly rate for piece work; and
(ii)
the applicable minimum hourly rate of pay; or
(b)
if the employee is paid partially or wholly by commission, the greater of—
(i)
the leave hourly rate (if any); and
(ii)
the applicable minimum hourly rate of pay; or
(c)
in all other cases, the employee’s leave hourly rate
shift means a continuous period of work that—
(a)
starts when the employee—
(i)
starts work; or
(ii)
would start work if they were not on leave; and
(b)
ends when the employee—
(i)
ends work; or
(ii)
would end work if they were not on leave.
(2)
An employee’s average hourly rate for piece work must be calculated using the following formula:
f ÷ h = p
where—
- f
is the total amount of piece work wages that the employer has paid the employee for the pay periods starting in the 93 days before (as applicable) the start of the pay period in which—
(a)
the leave is taken or the public holiday occurs; or
(b)
the payment is made, if the employee and the employer agree that the employee is to be paid a leave payment before the annual leave is taken; or
(c)
the employee made the request to cash up annual leave or alternative leave; or
(d)
the employee’s last day of employment falls
- h
is the number of hours that the employee has worked (excluding hours the employee was on paid leave) for the employer in the pay periods starting in the 93 days before the start of the relevant pay period in paragraph (a), (b), (c), or (d) of item f
- p
is the average hourly rate for piece work.
Leave payment
119 Leave payment
(1)
This section applies if—
(a)
an employee takes—
(i)
annual leave; or
(ii)
sick leave; or
(iii)
alternative leave; or
(iv)
bereavement leave; or
(v)
family violence leave; or
(b)
an employee does not work on a public holiday that is an otherwise working day for the employee.
(2)
The employer must—
(a)
calculate the leave payment payable to the employee in accordance with section 120; and
(b)
pay the leave payment to the employee,—
(i)
for leave listed in subsection (1)(a)(i), in the pay period in which the leave is taken, unless the employee and the employer agree that the employee is to be paid before the leave is taken; or
(ii)
for leave listed in subsection (1)(a)(ii), (iii), (iv), or (v), in the pay period in which the leave is taken; or
(iii)
for a public holiday referred to in subsection (1)(b), in the pay period in which the holiday occurs; and
(c)
continue to pay the employee any fixed allowances; and
(d)
identify the leave payment as a distinct component of the employee’s pay in their leave record in accordance with section 127.
(3)
However,—
(a)
if an employee is required under section 79 to provide proof of sickness or injury and fails to do so without reasonable excuse, the employer, until the employee complies with that requirement,—
(i)
is not required to pay the employee for any sick leave in respect of which the proof is required; and
(ii)
must not deduct any sick leave hours that the employee has accrued from the employee’s sick leave balance:
(b)
if an employee is required under section 107 to provide proof that they are a person affected by family violence and fails to do so without reasonable excuse, the employer, until the employee complies with that requirement,—
(i)
is not required to pay the employee for any family violence leave in respect of which the proof is required; and
(ii)
must not deduct any family violence leave from the employee’s entitlement under section 102.
(4)
In this section, fixed allowance—
(a)
means an amount payable to an employee under their employment agreement that—
(i)
is a fixed amount that must be paid in relation to a specified period or in certain circumstances (for example, an amount that must be paid for each hour worked during the night or an amount that must be paid fortnightly to recognise the employee’s particular skills); and
(ii)
the employee is entitled to receive despite the period of leave or public holiday; but
(b)
does not include—
(i)
an amount payable to an employee under their employment agreement—
(A)
only if certain circumstances occur (for example, an allowance for working in the rain); but
(B)
that the employee is not entitled to receive if they do not work; or
(ii)
reimbursement of an expense that the employee would not incur if the employee did not work.
Example
Jack is employed at a seafood factory and is required to work at least 4 hours per shift in the chiller. His employment agreement provides that he is entitled to receive a $60-per-night fixed allowance if he works any hours between 6 pm and 6 am. His employment agreement also provides that he is entitled to receive a $40-per-shift fixed allowance for working in the chiller, whether or not he works in the chiller. However, if he works more than 4 hours in the chiller, he receives an additional allowance of $10 for each additional hour worked in the chiller.
Jack is rostered to work a 3 am-to-11 am shift but takes annual leave. He is entitled to receive the following fixed allowances:
the $60-per-night fixed allowance; and
the $40 chiller fixed allowance.
Jack is not entitled to receive the additional $10-per-hour chiller allowance because it is not a fixed allowance.
Compare: 1981 No 15 s 30A(4), (6); 2003 No 129 ss 27, 55, 71, 72, 72I, 72J
120 Calculation of leave payment
(1)
An employer must calculate, in accordance with subsection (2), an employee’s pay for—
(a)
a period of leave taken in a pay period, including—
(i)
annual leave, sick leave, or family violence leave taken in advance:
(ii)
leave taken during an annual closedown:
(iii)
leave taken during an agreed closure:
(iv)
annual leave taken under section 34:
(b)
a public holiday that—
(i)
is a day on which the employee does not work; and
(ii)
is an otherwise working day for the employee.
(2)
The employee’s leave payment must be not less than the leave payment rate for each relevant hour that—
(a)
the employee takes as a period of leave in a pay period; or
(b)
the employee does not work on a public holiday that would be an otherwise working day for the employee.
(3)
In this section, relevant hour means,—
(a)
for an employee who works standard hours, each hour that the employee does not work because they take—
(i)
annual leave:
(ii)
sick leave:
(iii)
alternative leave:
(iv)
bereavement leave:
(v)
family violence leave; or
(b)
for an employee who works casual hours, each hour that the employee does not work because they take—
(i)
alternative leave:
(ii)
bereavement leave:
(iii)
family violence leave; or
(c)
for an employee who does not work on a public holiday that is an otherwise working day for the employee, each hour that the employee would have worked on the public holiday (as calculated under section 15).
Payment for working on public holiday
121 Payment for working on public holiday
(1)
This section applies if an employee works on a public holiday, whether or not the public holiday is an otherwise working day for the employee.
(2)
For each hour that the employee works on the public holiday, the employer must pay the employee—
(a)
the amount that the employee’s employment agreement requires the employer to pay the employee for the hour on the public holiday, less any identifiable amount; and
(b)
the greater of the following:
(i)
50% of the employee’s ordinary hourly rate:
(ii)
any identifiable amount.
(3)
In subsection (2), identifiable amount means an amount that is payable, in addition to the employee’s ordinary hourly rate, to compensate the employee for working on a particular day of the week or a public holiday.
(4)
In addition to the amount payable under subsection (2), the employer must pay the employee,—
(a)
at a rate not less than the employee’s leave payment rate in paragraph (a), (b), or (c) (as applicable) of the definition of leave payment rate in section 118, for any hours not worked on the public holiday if—
(i)
the number of hours that the employee would have worked on the day but for it being a public holiday is specified in the employee’s employment agreement; and
(ii)
the employee works fewer hours than the specified number of hours; or
(b)
any LCP payable under section 126.
(5)
In this section,—
ordinary hourly rate, for the purposes of calculating the rate of pay for working on a public holiday, means,—
(a)
for an employee who is paid by a salary, the amount of the employee’s salary, including any compensation payable under an availability provision, that is attributable to 1 standard hour’s work, excluding the following:
(i)
allowances:
(ii)
productivity-based or incentive payments (including commission):
(iii)
LCP:
(b)
for an employee who is paid wholly by wages, an amount that is the lowest hourly rate payable under the employee’s employment agreement, excluding the following:
(i)
allowances:
(ii)
productivity-based or incentive payments (including commission):
(iii)
LCP:
(c)
for an employee who is paid both by piece work and by a salary or wages, the greater of—
(i)
the sum of—
(A)
the amount that would apply under paragraph (a) or (b) (as applicable) if the employee were paid wholly by a salary or wages; and
(B)
the amount of the average hourly rate for piece work; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(d)
for an employee who is paid wholly by piece work, the greater of—
(i)
the amount of the average hourly rate for piece work; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(e)
for an employee who is paid both by commission and by a salary or wages, the greater of—
(i)
the amount that would apply under paragraph (a) or (b) (as applicable) if the employee were paid wholly by a salary or wages; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(f)
for an employee who is paid wholly by commission, the amount of the applicable minimum hourly rate of pay.
Payment for cashed-up annual leave or alternative leave
122 Payment for cashed-up annual leave or alternative leave
(1)
This section applies if an employer agrees to a request from an employee—
(a)
to cash up the employee’s annual leave under section 35; or
(b)
to cash up the employee’s alternative leave under section 67.
(2)
The employer must—
(a)
calculate the amount of leave to be paid in accordance with subsection (3); and
(b)
pay the amount as soon as practicable after the employer has agreed to the employee’s request.
(3)
For each hour of annual leave or alternative leave to be cashed up, the employee must be paid not less than the leave payment rate.
Payment for annual leave or alternative leave if employment ends
123 Payment for annual leave or alternative leave if employment ends
(1)
If an employee’s employment ends, this section applies to the employee’s—
(a)
annual leave; and
(b)
alternative leave.
(2)
The employer must—
(a)
calculate the amount of leave to be paid in accordance with subsection (3); and
(b)
pay the amount in the pay that relates to the employee’s final period of employment.
(3)
For each hour of annual leave or alternative leave that the employee has not taken or cashed up, the employee must be paid not less than the leave payment rate.
Subpart 8—Leave compensation payment
124 Application of this subpart
(1)
This subpart applies to an employee who works—
(a)
standard hours and additional hours, but only in relation to the additional hours:
(b)
casual hours.
(2)
This subpart does not apply to an employee’s standard hours.
125 Interpretation of this subpart
(1)
In this subpart, unless the context otherwise requires,—
average hourly rate for piece work has the meaning set out in subsection (2)
LCP employee means an employee who works—
(a)
standard hours and additional hours, but only in relation to the additional hours:
(b)
casual hours.
(2)
An employee’s average hourly rate for piece work must be calculated using the following formula:
f ÷ h = p
where—
- f
is the total amount of piece work wages that the employer has paid the employee for the pay periods starting in the 93 days before the start of the pay period in which the LCP is payable
- h
is the number of hours that the employee has worked (excluding hours the employee was on paid leave) for the employer in the pay periods starting in the 93 days before the start of the pay period in which the LCP is payable
- p
is the average hourly rate for piece work.
126 Employer must pay LCP to LCP employee
(1)
An employer must pay an LCP to an LCP employee in each pay period—
(a)
at a rate of not less than 12.5% of the employee’s ordinary hourly rate for each relevant hour in that pay period; and
(b)
in addition to any other payment the employer is required to pay to the employee for the pay period.
(2)
The employer must identify the LCP as a distinct component of the LCP employee’s pay in their leave record in accordance with section 127.
(3)
In this section,—
ordinary hourly rate, for the purposes of calculating the rate on which an LCP is payable, means,—
(a)
for an LCP employee who is paid by a salary, the amount of the employee’s salary, including any compensation payable under an availability provision, that is attributable to 1 standard hour’s work, excluding the following:
(i)
allowances:
(ii)
productivity-based or incentive payments (including commission):
(b)
for an LCP employee who is paid wholly by wages, an amount that is the lowest hourly rate payable under the employee’s employment agreement, excluding the following:
(i)
allowances:
(ii)
productivity-based or incentive payments (including commission):
(c)
for an LCP employee who is paid both by piece work and by a salary or wages, the greater of—
(i)
the sum of—
(A)
the amount that would apply under paragraph (a) or (b) (as applicable) if the employee were paid wholly by a salary or wages; and
(B)
the amount of the average hourly rate for piece work; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(d)
for an LCP employee who is paid wholly by piece work, the greater of—
(i)
the amount of the average hourly rate for piece work; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(e)
for an LCP employee who is paid both by commission and by a salary or wages, the greater of—
(i)
the amount that would apply under paragraph (a) or (b) (as applicable) if the employee were paid wholly by a salary or wages; and
(ii)
the amount of the applicable minimum hourly rate of pay:
(f)
for an LCP employee who is paid wholly by commission, the amount of the applicable minimum hourly rate of pay
relevant hour means,—
(a)
in relation to an LCP employee who works standard hours, each additional hour that the LCP employee—
(i)
works; or
(ii)
does not work because they take sick leave, alternative leave, bereavement leave, or family violence leave:
(b)
in relation to an LCP employee who works casual hours, each hour that the LCP employee—
(i)
works; or
(ii)
does not work because they take alternative leave, bereavement leave, or family violence leave:
(c)
in relation to any LCP employee, if the pay period includes a public holiday and the public holiday falls on a day that is an otherwise working day for the LCP employee, and the employee does not work an hour on that day,—
(i)
each additional hour that an employee who works standard hours would have worked on that day if it were not a public holiday, as determined under section 15; or
(ii)
each casual hour that an employee who works casual hours would have worked on that day if it were not a public holiday, as determined under section 15.
(4)
See subpart 3 of Part 3, which applies if an employer fails to apply, or incorrectly applies, this section.
Examples
An LCP employee’s employment agreement provides that an employee works standard hours and that they may work additional hours. The employee’s ordinary hourly rate of pay is $30. For each additional hour worked, the employee is entitled to be paid an LCP at 12.5% of their ordinary hourly rate ($30 × 12.5% = $3.75 per hour). If the employee works 3 additional hours, the employee is entitled to be paid an LCP for those 3 hours amounting to $11.25 ($3.75 × 3 = $11.25). The employee is entitled to be paid the LCP in addition to the hourly rate payable for working the additional hours. The employee is not entitled to be paid an LCP for working any of their standard hours.
An LCP employee’s employment agreement provides that the employee works casual hours. The employee’s ordinary hourly rate of pay is $30 and their penal rate is $40 per hour. For each hour worked, the employee is entitled to be paid an LCP at 12.5% of their ordinary hourly rate ($30 × 12.5% = $3.75 per hour). If the employee works 3 hours at their ordinary hourly rate of pay and 3 hours at their penal rate, the employee is entitled to be paid an LCP for the 6 hours worked amounting to $22.50 ($3.75 × 6 hours = $22.50).
Part 3 Leave records, enforcement, and other matters
Subpart 1—Leave records
127 Leave records: content
(1)
An employer must at all times keep a leave record showing the following information for each employee:
(1)
the employee’s name:
(2)
the employee’s start date:
(3)
the number of hours the employee has worked each day in each pay period:
(4)
the amount paid to the employee in each pay period itemised by category (for example, ordinary rate, overtime rate, piece work rate, penal rate, commission, or allowances):
(5)
the number of hours on which any LCP is paid to the employee in each pay period and the LCP paid for those hours:
Annual leave information
(6)
the employee’s—
(a)
current annual leave balance; and
(b)
annual leave balance as at the employee’s most recent start date anniversary:
(7)
for each pay period, the number of hours of annual leave the employee has accrued:
(8)
for each pay period,—
(a)
the dates on which the employee has taken annual leave; and
(b)
the number of hours the employee has taken as annual leave on each of those dates:
(c)
the amount paid to the employee for annual leave:
(9)
in relation to a request to cash up annual leave under section 35, a copy of the employee’s request and a copy of the employer’s advice:
(10)
details of any annual leave the employee has cashed up under section 35, including—
(a)
the number of hours of annual leave cashed up; and
(b)
the percentage of accrued annual leave (as at the employee’s most recent start date anniversary) that the employee has cashed up; and
(c)
the date and amount of the payment:
(11)
the notice of an annual closedown required under section 48(2):
(12)
the agreement to a closure under section 50:
Public holiday information
(13)
the date of, the number of hours on, and details of payments for, any public holiday or transferred public holiday on which the employee did not work but for which the employee is entitled to be paid:
(14)
the date of any public holiday on which the employee worked and the number of hours the employee worked:
(15)
if the employee’s employment agreement provides that the employer may require the employee to work on a public holiday under section 54 and the employer requires the employee to be on call on a public holiday,—
(a)
the date of that public holiday; and
(b)
the number of hours that the employee was on call on that public holiday:
(16)
the day or part of a day that the employee and their employer agreed to transfer under section 56 or 57 and the calendar day or period of 24 hours to which it has been transferred:
(17)
a copy of records that demonstrate that the employer has complied with the requirements of sections 56 and 57:
(18)
the amount of payment for any public holiday on which the employee worked:
Alternative leave information
(19)
the employee’s alternative leave balance:
(20)
the date on which the employee accrued alternative leave and the number of hours accrued on that date:
(21)
for each pay period,—
(a)
the dates on which the employee has taken alternative leave; and
(b)
for each of those dates, the number of hours the employee has taken as alternative leave:
(c)
the amount paid to the employee for alternative leave:
(22)
in relation to a request to cash up alternative leave under section 67, a copy of the employee’s request and a copy of the employer’s advice:
(23)
details of any alternative leave the employee has cashed up under section 67, including—
(a)
the number of hours of alternative leave cashed up; and
(b)
the date and amount of the payment:
Sick leave information
(24)
the employee’s sick leave balance:
(25)
for each pay period, the number of hours of sick leave the employee has accrued:
(26)
for each pay period,—
(a)
the dates on which the employee has taken sick leave; and
(b)
for each of those dates, the number of hours the employee has taken as sick leave; and
(c)
the amount paid to the employee for sick leave:
Bereavement leave information
(27)
for each pay period,—
(a)
the dates on which the employee has taken bereavement leave:
(b)
for each of those dates,—
(i)
the number of whole days or part days the employee has taken as bereavement leave, calculated in accordance with section 92; and
(ii)
the number of hours the employee has taken as bereavement leave on each of those days, calculated in accordance with section 120:
(c)
the amount paid to the employee for bereavement leave:
Family violence leave information
(28)
for each pay period,—
(a)
the dates on which the employee has taken family violence leave:
(b)
for each of those dates,—
(i)
the number of whole days or part days the employee has taken as family violence leave, calculated in accordance with section 109; and
(ii)
the number of hours the employee has taken as family violence leave on each of those days, calculated in accordance with section 120:
(c)
the amount paid to the employee for family violence leave:
Other leave information
(29)
the periods of any other paid or unpaid leave that the employee has taken under any other legislation or otherwise and the type of leave:
(30)
in relation to a request to cash up purported annual leave under section 146(2)(b) or (4)(b), a copy of the employee’s request and a copy of the employer’s advice:
(31)
details of any purported annual leave the LCP employee has cashed up under section 146, including—
(a)
the number of hours of purported annual leave cashed up; and
(b)
the date and amount of the payment:
(32)
any notice provided by an employer to an LCP employee under section 146(7):
Termination of employment
(33)
if the employee ceases employment with the employer,—
(a)
the final date on which the employee is employed:
(b)
any amount paid to the employee as annual leave or alternative leave under section 123.
(2)
If the number of hours an employee is to work each day in a pay period and the pay for those hours are agreed and the employee works those hours (the usual hours), it is sufficient compliance with subsection (1)(3) and (4) if those usual hours and pay are stated in—
(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 work roster or any other document or record used in the normal course of the employee’s employment.
(3)
In subsection (2), the usual hours of an employee who is remunerated by way of salary include any extra hours worked by the employee in accordance with the employee’s employment agreement.
(4)
Despite subsection (3), the employer must record any hours that need to be recorded to enable the employer to comply with the employer’s general obligation under section 4B(1) of the Employment Relations Act 2000.
(5)
In this section,—
(a)
an employee’s annual leave balance means the balance of the employee’s accrued annual leave calculated using the following formula:
e − l = a
where—
- e
is the sum of the following:
(i)
the number of hours of annual leave that the employee has accrued under section 24 since the later of—
(A)
the employee’s start date; and
(B)
the date on which this section comes into force; and
(ii)
the number of hours of purported annual leave that the employee has accrued under section 146; and
(iii)
the number of hours of annual holidays that the employee was entitled to under the Holidays Act 2003 (after the employee’s previous annual holidays were converted under clause 12 of Schedule 1)
- l
is the total number of hours of annual leave or purported annual leave that the employee has taken or cashed up since the later of—
(i)
the employee’s start date; and
(ii)
the date on which this section comes into force
- a
is the employee’s annual leave balance in hours:
(b)
an employee’s sick leave balance means the balance of the employee’s sick leave calculated using the following formula:
e − l = s
where—
- e
is the sum of the following:
(i)
the number of hours of sick leave that the employee has accrued under section 73 since the later of—
(A)
the employee’s start date; and
(B)
the date on which this section comes into force; and
(ii)
the number of hours of purported sick leave that the employee has accrued under section 146; and
(iii)
the number of hours of sick leave that the employee was entitled to under the Holidays Act 2003 (after the employee’s previous sick leave was converted under clause 18 of Schedule 1)
- l
is the total number of hours of sick leave the employee has taken since the later of—
(i)
the employee’s start date; and
(ii)
the date on which this section comes into force
- s
is the employee’s sick leave balance in hours:
(c)
an employee’s alternative leave balance means the balance of the employee’s alternative leave entitlement calculated using the following formula:
e − l = al
where—
- e
is the sum of the following:
(i)
the number of hours of alternative leave that the employee has accrued under section 63 since the later of—
(A)
the employee’s start date; and
(B)
the date on which this section comes into force; and
(ii)
the number of hours of alternative leave that the employee was entitled to under the Holidays Act 2003 (after the employee’s previous alternative leave was converted under clause 22 of Schedule 1)
- l
is the total number of hours of alternative leave the employee has taken since the later of—
(i)
the employee’s start date; and
(ii)
the date on which this section comes into force
- al
is the employee’s alternative leave balance in hours.
Compare: 1981 No 15 s 31; 2003 No 129 s 81
128 Leave records: form
(1)
The leave record must be kept—
(a)
in written form; or
(b)
in a form or in a manner that allows the information in the record to be easily accessed and converted into written form.
(2)
The leave record may be kept so as to form part of the wages and time record required to be kept under section 130 of the Employment Relations Act 2000.
129 Leave records: retention
(1)
An employer must keep information that is in a leave record for not less than 6 years after the date on which the information is entered.
(2)
However, after the expiry of the period specified in subsection (1),—
(a)
if any of the information is relevant to any proceeding before the Authority or the court under this Act or the Employment Relations Act 2000, the employer must keep the relevant information for the duration of those proceedings, unless the Authority or the court waives this requirement; or
(b)
if any of the information is specified in a notice given by a Labour Inspector under section 229(1)(da) of the Employment Relations Act 2000, the employer must keep the information for the period specified in the notice.
130 Requests for access to leave record
(1)
The following persons may request an employer to provide access to, or a copy of, or a certified extract from, information in the leave record relating to an employee:
(a)
the employee:
(b)
an authorised representative of the employee:
(c)
an authorised representative of a union of which the employee is a member:
(d)
a Labour Inspector.
(2)
An employer who receives a request under subsection (1) must comply with the request as soon as practicable by—
(a)
allowing the employee, authorised representative of the employee, authorised representative of the union, or Labour Inspector to view the record; or
(b)
providing a copy of, or a certified extract from, the information concerned.
(3)
However, an employer must not provide access to, or a copy of, or a certified extract from, any information in the employee’s leave record relating to the employee’s family violence leave unless—
(a)
a request made under subsection (1) is specifically for that information; and
(b)
the employer receives the employee’s written consent for the employer to provide the information to the person making the request.
(4)
For the purposes of subsection (3)(b), a representative referred to in subsection (1)(b) or (c) must not consent on behalf of the employee.
(5)
Despite subsection (3), nothing in this section limits an employer’s obligation to disclose information under the Criminal Disclosure Act 2008.
(6)
Subsections (3) and (4) do not apply to a request made by a Labour Inspector under this section.
Compare: 2003 No 129 s 82
131 Failure to keep or provide access to leave record
(1)
Evidence that an employer has failed to comply with section 127, 128, 129, or 130 may be given in an action before the Authority for 1 or more of the following purposes:
(a)
to recover a leave payment:
(b)
to recover a payment for cashed-up annual leave or alternative leave:
(c)
to recover a payment for annual leave or alternative leave if employment ends:
(d)
to recover a payment for working on a public holiday:
(e)
to recover an LCP:
(f)
to enforce an entitlement to annual leave, public holidays, alternative leave, sick leave, bereavement leave, or family violence leave against an employer.
(2)
For the purposes of subsection (1), an action before the Authority includes the determination of an objection to—
(a)
an improvement notice issued under section 223D of the Employment Relations Act 2000; or
(b)
a demand notice served under section 224 of the Employment Relations Act 2000.
(3)
If, after hearing the evidence, the Authority is satisfied that the employer failed to comply with section 127, 128, 129, or 130 and that the failure prevented the claimant from bringing an accurate claim, the Authority may make a finding to that effect.
(4)
If the Authority makes a finding under subsection (3), it may accept as proved, in the absence of evidence to the contrary, statements made by the employee about—
(a)
the leave payment:
(b)
the payment for cashed-up annual leave or alternative leave:
(c)
the payment for annual leave or alternative leave paid to the employee if employment ends:
(d)
the payment for working on a public holiday:
(e)
the LCP paid to the employee:
(f)
the entitlement to annual leave, public holidays, alternative leave, sick leave, bereavement leave, or family violence leave.
Compare: 2003 No 129 s 83
Subpart 2—Enforcement
132 Employee and employer obligations under this Act
(1)
When dealing with each other under this Act, an employee and their employer must do so in good faith.
(2)
At the time an employee enters into an employment agreement with an employer, the employer must inform the employee—
(a)
about their entitlements under this Act; and
(b)
that the employee can obtain further information about their entitlements under this Act from—
(i)
a union of which the employee is a member (if applicable):
(ii)
the department; and
(c)
if the employee is an ASE, about how their leave payments are calculated.
Compare: 2003 No 129 s 73
133 Who can enforce this Act
(1)
The provisions of this Act may be enforced in accordance with this Act by—
(a)
an employee:
(b)
an authorised representative of an employee:
(c)
an authorised representative of a union of which an employee is a member:
(d)
an employer:
(e)
a Labour Inspector.
(2)
An employee’s entitlement to any of the following that is in addition to the entitlements under this Act may be enforced only by a person listed in subsection (1)(a) to (c):
(a)
annual leave:
(b)
public holidays:
(c)
alternative leave:
(d)
sick leave:
(e)
bereavement leave:
(f)
family violence leave:
(g)
LCP.
Compare: 2003 No 129 s 74
134 Penalties for non-compliance
(1)
An employer who fails to comply with any of the provisions listed in subsection (2), and every person who is involved in the failure to comply, is liable,—
(a)
if the employer or the person who is involved in the failure to comply is an individual, to a penalty not exceeding $10,000:
(b)
if the employer or the person who is involved in the failure to comply is a company or other body corporate, to a penalty not exceeding $20,000.
(2)
The provisions are—
Notional rosters
(1)
section 10(2), (4), and (5) (which relates to the requirement for an employee to have a notional roster):
Otherwise working day
(2)
section 16(1) and (2) (which relates to the requirement for an employer to notify an employee whether a day is an otherwise working day):
Relationship between accident compensation and other types of leave
(3)
section 21(3) to (8) (which relates to when an employee who is receiving accident compensation may take leave under this Act):
Annual leave
(4)
sections 24, 26(2), 27(1) and (2)(b), 28(2)(b) and (3), 30(2), 31(2), 32(2), 33, and 34(2), (3), and (4) (which relate to an employee accruing and taking annual leave):
(5)
sections 35(2) and (4), 36(1), 37, and 39 (which relate to an employee cashing up accrued annual leave):
(6)
sections 41(2), 42(2), and 43(2) (which relate to circumstances in which an employer must allow an employee to change the type of leave they are taking):
(7)
section 44(2)(a) (which relates to when an employee may take annual leave if other types of leave are exhausted):
(8)
section 45 (which relates to when an employer must treat a public holiday that occurs during an employee’s annual leave as a public holiday and not as part of the employee’s annual leave):
(9)
section 47(2) (which limits the frequency of annual closedowns):
(10)
section 48 (which relates to notice of an annual closedown):
Public holidays
(11)
section 53 (which relates to an employee’s entitlement to a public holiday):
(12)
section 54 (which relates to when an employee may be required to work on a public holiday):
(13)
sections 56(5) and (6) and 57(4), (5), and (7)(b) (which relate to transferring part or all of a public holiday that an employee has worked to another day):
(14)
sections 59 and 60 (which relate to observing public holidays over Christmas and New Year and to observing Waitangi Day and Anzac Day public holidays):
(15)
section 61(4) and (6) (which relates to an employee taking sick leave, bereavement leave, or family violence leave on a public holiday):
Alternative leave
(16)
section 63 (which relates to an employee’s accrual of alternative leave):
(17)
sections 65 and 66 (which relate to when an employee may take alternative leave):
(18)
sections 67(3), 68(1), 69, and 71(1) (which relate to an employee cashing up accrued alternative leave):
Sick leave
(19)
sections 73 and 75(1) (which relate to an employee’s accrual of sick leave):
(20)
section 79(1) and (2)(a) (which relates to an employer requiring an employee to provide proof of sickness or injury):
(21)
Bereavement leave
(22)
sections 88, 89, 91, and 92 (which relate to an employee’s entitlement to bereavement leave):
(23)
Family violence leave
(24)
sections 102, 103, 108(1) and (3), and 109 (which relate to an employee’s entitlement to family violence leave):
(25)
Leave payments
(26)
section 119(2) and (3)(a)(ii) and (b)(ii) (which relates to calculating and making a leave payment):
(27)
section 121 (which relates to payment for working on a public holiday):
(28)
section 122(2) and (3) (which relates to payment for cashed-up annual leave or alternative leave):
(29)
section 123(2) and (3) (which relates to payment when an employee’s employment ends):
LCP
(30)
section 126(1) and (2) (which relates to the requirement for an employer to pay an LCP to an employee):
Leave records
(31)
sections 127 to 130 (which relate to the requirements for an employer to keep a leave record for each employee and to provide access to that leave record):
Enforcement
(32)
section 132(2) (which relates to an employer informing an employee about their entitlements under this Act):
(33)
section 144 (which relates to the presumption that an employee’s employment is continuous if the employee is dismissed and re-employed within 1 month):
Employer liability if LCP paid incorrectly
(34)
section 146(3), (5), (7), (8), (11), (12), (15), and (16)(a) and (b) (which relates to an employer’s liability if leave is purportedly accrued instead of the employee receiving an LCP):
(35)
section 147(2) (which relates to an employer’s liability if an LCP is not paid to an employee):
(36)
section 148 (which relates to an employer’s liability if LCP is paid to an employee entitled to accrue leave):
Schedule 1
Schedule 3
(3)
For the purposes of subsection (1), a person is involved in a failure to comply if the person would be treated as a person involved in a breach within the meaning of section 142W of the Employment Relations Act 2000.
Compare: 1981 No 15 s 34(1)(a); 2003 No 129 s 75
135 Proceedings by Labour Inspector or employee concerned for penalty
(1)
A Labour Inspector and the employee concerned are the only persons who may bring an action before the Authority against an employer to recover a penalty under section 134.
(2)
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 134.
(3)
A claim for 2 or more penalties against the same employer may be joined in the same action.
(4)
A claim for a penalty may be heard in conjunction with any proceedings for the recovery of any—
(a)
leave payment:
(b)
payment for cashed-up annual leave or alternative leave:
(c)
payment for annual leave or alternative leave if employment ends:
(d)
payment for working on a public holiday:
(e)
LCP.
(5)
After hearing an action for recovery of a penalty, the Authority may—
(a)
give judgment for the amount claimed; or
(b)
give judgment for an amount that is less than the amount claimed; or
(c)
dismiss the action.
(6)
An action for the recovery of a penalty must be commenced within 12 months after the earlier of the following:
(a)
the date on which the cause of action became known to the Labour Inspector or employee concerned:
(b)
the date on which the cause of action should reasonably have become known to the Labour Inspector or employee concerned.
(7)
Despite subsection (6), if a court refuses to make a pecuniary penalty order under section 142E of the Employment Relations Act 2000, an action for the recovery of a penalty in relation to the same matter must be commenced within 3 months after the refusal.
(8)
A penalty that is recovered must be paid,—
(a)
if, and to the extent, ordered by the Authority, to any person the Authority specifies; or
(b)
in any other case, into court and then into a Crown Bank Account.
Compare: 2003 No 129 s 76
136 Matters Authority to have regard to in determining amount of penalty
In determining an appropriate penalty under section 135, the Authority or the court must have regard to all relevant matters, including—
(a)
(b)
the matters referred to in section 133A(b) to (g) of the Employment Relations Act 2000.
Compare: 2003 No 129 s 76A
137 Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court as a debt due to the Crown any penalty ordered by the Authority or the court under section 135 to be paid to the Crown.
Compare: 2003 No 129 s 76B
138 Proceedings by Labour Inspector to recover arrears of pay from employer
(1)
A Labour Inspector may take proceedings on behalf of an employee to recover from the employee’s employer any of the following payments that the employee has not received but is entitled to under this Act:
(a)
leave payment:
(b)
payment for cashed-up annual leave or alternative leave:
(c)
payment for annual leave or alternative leave if employment ends:
(d)
payment for working on a public holiday:
(e)
LCP.
(2)
If a Labour Inspector takes proceedings under subsection (1), the Labour Inspector must not issue a demand notice under section 224 of the Employment Relations Act 2000 in respect of the same pay.
(3)
Section 131 of the Employment Relations Act 2000 applies, with all necessary modifications, to proceedings taken under subsection (1).
(4)
An action initiated or taken under this Act by a Labour Inspector may be completed by another Labour Inspector.
Compare: 1981 No 15 s 35; 2003 No 129 s 77
139 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 of the following payments if the payment is due to non-compliance with this Act and the person from whom the pay is sought to be recovered is involved in the non-compliance:
(a)
leave payment:
(b)
payment for cashed-up annual leave or alternative leave:
(c)
payment for annual leave or alternative leave if employment ends:
(d)
payment for working on a public holiday:
(e)
LCP.
(2)
However, the unpaid payment may be recovered under subsection (1) only,—
(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 payment.
(3)
For the purposes of subsection (1), a person is involved in the non-compliance if the person would be treated as a person involved in a breach within the meaning of section 142W of the Employment Relations Act 2000.
Compare: 2003 No 129 s 77A
140 Powers of Labour Inspector
For the purposes of this Act, every Labour Inspector has, in addition to any powers conferred by this Act, all the powers that a Labour Inspector has under the Employment Relations Act 2000.
Compare: 1981 No 15 s 32; 2003 No 129 s 78
141 Determinations by Labour Inspector
Except to the extent that, in any proceedings before the Authority, the Authority makes its own determination on the matter, a determination made by a Labour Inspector under section 12 or 144(2) is binding on the employee and their employer.
Compare: 2003 No 129 s 79
142 Labour Inspector must consult employee and employer
Before making a determination under this Act, a Labour Inspector must—
(a)
discuss the matter with the employee and their employer; and
(b)
give the employee and the employer the opportunity to comment on what the Labour Inspector proposes to consider in making the determination.
Compare: 2003 No 129 s 80
143 Power to award interest on unpaid leave payment
(1)
Subsection (2) applies if—
(a)
the Authority gives judgment for an employee in an action to recover—
(i)
a leave payment:
(ii)
a payment for cashed-up annual leave or alternative leave:
(iii)
a payment for annual leave or alternative leave if employment ends:
(iv)
a payment for working on a public holiday:
(v)
an LCP; or
(b)
the Authority makes a determination under section 226 of the Employment Relations Act 2000 in favour of the employee.
(2)
The Authority may include, in the sum for which judgment is given or the determination is made, interest for the whole or any part of the period starting on the date when the cause of action arose and ending on the date of payment in accordance with the judgment or determination.
(3)
Interest included in a judgment or determination must not exceed interest calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016.
Compare: 2003 No 129 s 84
144 Presumption that employment continuous if employee dismissed and re-employed within 1 month
(1)
If an employer dismisses an employee and then re-employs the employee within 1 month after the dismissal, the employee’s employment must be treated as being continuous for the purposes of the employee’s entitlements under this Act, including,—
(a)
for an employee who works standard hours, in relation to annual leave and sick leave; or
(b)
for all employees, in relation to family violence leave.
(2)
Subsection (1) does not apply if a Labour Inspector makes a determination that the Labour Inspector is satisfied that—
(a)
the employer acted in good faith; and
(b)
the employer did not act for the purpose of evading their obligations under this Act.
Compare: 1981 No 15 s 20; 2003 No 129 s 85
145 Payments treated as salary or wages
(1)
The following payments payable by an employer to an employee must be treated as salary or wages earned by the employee:
(a)
leave payments:
(b)
payments for cashed-up annual leave or alternative leave:
(c)
payments for annual leave or alternative leave if employment ends:
(d)
payments for working on a public holiday:
(e)
LCPs.
(2)
Without limiting subsection (1), the payments are subject to any deductions that the employer is required or entitled to make from salary or wages for the purposes of income tax or any other purpose.
Compare: 1981 No 15 s 22; 2003 No 129 s 86
Subpart 3—Employer liability if LCP paid incorrectly
146 Employer’s liability if leave accrued instead of LCP employee receiving LCP
(1)
This section applies if an employer does not pay an LCP employee an LCP under section 126 and—
(a)
purports that the employee accrues annual leave under section 24; or
(b)
purports that the employee accrues sick leave under section 73.
Purported annual leave
(2)
An LCP employee who works casual hours may do either or both of the following in relation to any purported annual leave (PAL):
(a)
take the PAL during any hours that the employee and their employer agree:
(b)
request to cash up all or any of the PAL in accordance with subsection (9).
(3)
The employer must not unreasonably withhold their agreement to the LCP employee taking the PAL under subsection (2)(a).
(4)
An LCP employee who works additional hours may do either or both of the following in relation to any PAL:
(a)
take the PAL in accordance with section 26 and section 30, 31, or 32 as if the PAL were accrued annual leave:
(b)
request to cash up all or any of the PAL in accordance with subsection (9).
(5)
Except as provided in this section and for the purposes of section 127, the PAL of an LCP employee who works additional hours must be treated as accrued annual leave under this Act.
(6)
If the LCP employee’s employment ends, section 123 applies to any PAL that the employee has not taken or cashed up under this section as if it were accrued annual leave.
Cashing up purported annual leave
(7)
The employer of an LCP employee with PAL must notify the LCP employee of the following:
(a)
that the employee may request to cash up all or any of the PAL; and
(b)
that the employee’s request must be in writing and may not be withdrawn; and
(c)
the number of hours of the PAL, as at the date of the notice, that the employee may cash up; and
(d)
the date by which the employee must make the request; and
(e)
that the number of hours of PAL that the employee may cash up may increase if the employee works any casual hours or additional hours in the period starting on the date of the notice and ending on the date by which the employee makes the request; and
(f)
that any PAL that is not cashed up will be treated as accrued annual leave.
(8)
The employer of an LCP employee with PAL must provide the notice in subsection (7)—
(a)
in writing; and
(b)
at least 14 days before the earlier of—
(i)
the date specified in subsection (16)(a)(i); and
(ii)
the date specified in subsection (16)(a)(ii).
(9)
A request to cash up PAL under subsection (2)(b) or (4)(b)—
(a)
must be in writing; and
(b)
must be made no later than the date specified in subsection (16)(a).
(10)
For the purposes of a request to cash up PAL, section 35(4) and (5) applies as if the request were a request to cash up accrued annual leave.
(11)
An employer who agrees to a request to cash up PAL must—
(a)
comply with section 122 as if the request were a request to cash up accrued annual leave; and
(b)
pay the employee an additional amount calculated using the following formula:
(p ÷ 0.0769) × r × 0.0092 = a
where—
- p
is the total number of hours of annual leave that the employer has purported to accrue under section 24 for the employee
- r
is the rate calculated in accordance with paragraph (b) of the definition of leave hourly rate in section 118(1)
- a
is the additional amount.
(12)
However, the maximum number of hours of PAL that an employee may cash up under this section is the number of the employee’s hours of PAL after deducting any outstanding annual leave taken in advance.
Purported sick leave
(13)
An LCP employee who works casual hours may take any purported sick leave on any hours specified in the employee’s work roster.
(14)
An LCP employee who works additional hours may take any purported sick leave in accordance with section 81, 82, 83, 84, or 85.
(15)
Except as provided in this section, an LCP employee’s purported sick leave must be treated as accrued sick leave under this Act.
Compliance with section 126
(16)
The employer—
(a)
must comply with section 126 on and from—
(i)
the date that is 8 weeks after the earlier of—
(A)
the date on which the LCP employee notifies the employer in writing of the unpaid LCP; and
(B)
the date on which a Labour Inspector notifies the employer in writing of the unpaid LCP; or
(ii)
an earlier date agreed by the employee and the employer; and
(b)
must continue to purport to accrue annual leave or sick leave for the employee until the date set out in paragraph (a); and
(c)
is not required to pay an LCP to the employee until the date set out in paragraph (a).
147 Employer’s liability if LCP not paid to LCP employee
(1)
This section applies if an employer of an LCP employee—
(a)
does not pay an LCP to the employee as required under section 126; and
(b)
does not purport that the employee accrues—
(i)
annual leave under section 24; or
(ii)
sick leave under section 73.
(2)
The employer must pay the unpaid amount of the LCP by the date that is 8 weeks after the earlier of—
(a)
the date on which the employee notifies the employer in writing of the unpaid LCP; or
(b)
the date on which a Labour Inspector notifies the employer in writing of the unpaid LCP.
148 Employer’s liability if LCP paid to employee entitled to accrue leave
(1)
This section applies if an employer pays an LCP to an employee who is entitled to accrue annual leave or sick leave.
(2)
The employer must ensure that the employee accrues annual leave and sick leave in accordance with sections 24 and 73 and stop paying an LCP to the employee.
(3)
The employer must comply with subsection (2) on and from—
(a)
the date that is 8 weeks after the earlier of—
(i)
the date on which the employee notifies the employer in writing that the employee is entitled to accrue annual leave and sick leave; and
(ii)
the date on which a Labour Inspector notifies the employer in writing that the employee is entitled to accrue annual leave and sick leave; or
(b)
an earlier date agreed by the employee and the employer.
(4)
The employee is entitled to—
(a)
continue to receive the LCP up to the date specified in subsection (3); and
(b)
keep the LCP.
Subpart 4—Regulations and repeal
149 Regulations
(1)
The Governor-General may, by Order in Council, make regulations for 1 or more of the following purposes:
(a)
prescribing forms for the purposes of this Act:
(b)
prescribing the procedure in relation to proceedings under this Act:
(c)
providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
(2)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 2003 No 129 s 87
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
150 Repeal of Holidays Act 2003
The Holidays Act 2003 (2003 No 129) is repealed.
Subpart 5—Remediation process
151 Meaning of remediation process
In this subpart, remediation process and process mean—
(a)
the process set out in Schedule 3; and
(b)
the process specified in regulations made under section 153.
152 Employer may elect to follow remediation process
(1)
An employer may elect to follow the remediation process if—
(a)
they were an employer before the date on which this section comes into force; and
(b)
they wish to resolve, to the extent specified in Schedule 3, their outstanding liability under the Holidays Act 2003 to their employees.
(2)
However, the remediation process is not the only means by which an employer may resolve their outstanding liability to their employees under the Holidays Act 2003.
153 Regulations for remediation process
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that specify the remediation process for the purposes of section 152.
(2)
Before making a recommendation, the Minister must—
(a)
be satisfied that the remediation process will require employers to pay reasonable compensation to employees to settle—
(i)
any underpayment of an amount payable by the employer under the Holidays Act 2003; or
(ii)
any failure to provide an entitlement under the Holidays Act 2003; and
(b)
have regard to—
(i)
any data that is provided to the Minister and that relates to the scale of remediation payable by employers under the Holidays Act 2003; and
(ii)
any data that relates to the reasons for any underpayment of an amount payable by employers under the Holidays Act 2003 in various circumstances; and
(iii)
the desirability of quickly and efficiently resolving any underpayment or failure to pay an entitlement; and
(iv)
the need for employees and employers (including employers who have very few employees) to easily understand and use the remediation process; and
(c)
consult representatives of employees and employers that the Minister considers appropriate.
(3)
Regulations made under this section must—
(a)
come into force on or after the second anniversary of Royal assent to this Act; and
(b)
provide a remediation process that addresses any underpayment or failure to pay under the Holidays Act 2003 in relation to a period—
(i)
starting no later than the date that is 4 years before Royal assent to this Act; and
(ii)
ending on the second anniversary of Royal assent to this Act.
(4)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
154 Revocation of regulations for remediation process
All regulations made under section 153 are revoked on the date that is 11 years after the date on which this section comes into force.
155 Repeal of this subpart and Schedule 3
This subpart and Schedule 3 are repealed on the date that is 11 years after the date on which this section comes into force.
Subpart 6—Consequential and related amendments
Amendments to Employment Relations Act 2000
156 Principal Act
Sections 157 to 170 amend the Employment Relations Act 2000.
157 Section 67D amended (Availability provision)
In section 67D(1), replace “section and section 67E”
with “section, section 67E, and section 130”
.
158 New section 67DA inserted (Relationship between availability provisions and Employment Leave Act 2026)
After section 67D, insert:
67DA Relationship between availability provisions and Employment Leave Act 2026
(1)
Despite section 67D, an employer must not require an employee to accept work under an availability provision during an annual leave period.
(2)
For the purposes of this section, annual leave period means a period—
(a)
starting immediately after the last hour that the employee works before the employee takes annual leave; and
(b)
ending immediately before the first hour that the employee works after taking annual leave.
Example
The hours of work specified in Employee A’s employment agreement are to be performed on Mondays, Tuesdays, Wednesdays, and Thursdays between 9 am and 5 pm. The employment agreement also contains an availability provision that requires Employee A to be available to accept any work that the employer makes available on Fridays or Saturdays.
If Employee A takes annual leave on a Thursday, the employer must not require Employee A to be available to accept work that the employer makes available on the following Friday or Saturday. This is because Employee A’s annual leave period starts at 5 pm on Wednesday and ends at 9 am on the following Monday.
159 Section 67G amended (Cancellation of shifts)
Repeal section 67G(7).
160 Section 69OB amended (Interpretation)
In section 69OB(1), definition of individualised employee information, paragraph (a)(iv)(C), replace “holiday and leave record”
with “leave record under the Employment Leave Act 2026”
.
161 Section 69OI amended (Interpretation)
(1)
In section 69OI(1), replace the definition of employee protection provision with:
employee protection provision means a provision that protects the employment of employees affected by a restructuring
(2)
After section 69OI(3), insert:
(4)
In this subpart, unless the context otherwise requires, any term or expression that is used but not defined in this Act, but that is defined in the Employment Leave Act 2026, has the meaning set out in that Act.
162 Section 69OJ replaced (Collective agreements and individual employment agreements must contain employee protection provision)
Replace section 69OJ with:
69OJ Collective agreements and individual employment agreements must contain employee protection provision
(1)
A collective agreement or an individual employment agreement, to the extent that it binds an employee to whom this subpart applies, must contain an employee protection provision.
(2)
The employee protection provision must specify—
(a)
a process that the employer must follow in negotiating with a new employer about the restructuring to the extent that it relates to an affected employee; and
(b)
the matters relating to the affected employee’s employment that the employer must negotiate with the new employer, including the matters specified in subsection (3); and
(c)
the process to be followed at the time of the restructuring to determine what entitlements, if any, are available for an employee who does not transfer to the new employer.
(3)
For the purposes of subsection (2)(b), the matters that must be negotiated include—
(a)
whether the affected employee will transfer to the new employer:
(b)
if the affected employee is to transfer to the new employer,—
(i)
whether the employee will transfer on the same terms and conditions of employment:
(ii)
whether the new employer will treat the employee’s employment as continuous, including for the purposes of determining the employee’s—
(A)
entitlement to annual leave, sick leave, or family violence leave:
(B)
entitlement to any other service-related entitlements (whether legislative or otherwise):
(iii)
the extent to which the new employer will recognise the employee’s entitlement, as at the end of their employment with the employer, to—
(A)
any annual leave that the employee has accrued and not taken or cashed up:
(B)
any sick leave that the employee has accrued and not taken:
(C)
any alternative leave that the employee has accrued and not taken or cashed up:
(D)
any other service-related entitlements (whether legislative or otherwise) that the employee has become entitled to and not taken (or, if applicable, not cashed up or exchanged for payment):
(iv)
if the new employer agrees to recognise some or all of the entitlements specified in subparagraph (iii)(A) or (C), whether an employee who chooses to transfer to the new employer will be given the option of—
(A)
the new employer recognising the entitlement (to the extent that the new employer has agreed to recognise the entitlement); or
(B)
the employer paying out the entitlement.
(4)
If the new employer agrees to treat, under subsection (3)(b)(ii), the affected employee’s employment as continuous for the purposes of determining the affected employee’s entitlement to family violence leave, the new employer must recognise any family violence leave entitlement—
(a)
to which the affected employee has become entitled; but
(b)
that the employee has not taken as at the end of their employment with the employer.
69OJA Employer and new employer must determine liability for cost of entitlements recognised by new employer
(1)
This section applies if the new employer agrees, as part of negotiations with the employer, to recognise some or all of a specified entitlement that an affected employee has accrued or become entitled to and has not taken (or, if applicable, not cashed out) as at the end of their employment with the employer.
(2)
The employer and new employer must determine how liability for the cost of the specified entitlement is to be apportioned between them.
(3)
In this section, specified entitlement means any of the following:
(a)
accrued annual leave:
(b)
accrued sick leave:
(c)
accrued alternative leave:
(d)
an entitlement to family violence leave:
(e)
any other service-related entitlement (whether legislative or otherwise).
163 New sections 69OKA to 69OKH inserted
After section 69OK, insert:
69OKA Sections 69OKB to 69OKH apply if affected employee chooses to transfer to new employer
Sections 69OKB to 69OKH apply if, in relation to a restructuring, an affected employee chooses to transfer to the new employer.
69OKB Employer must provide new employer with information required to determine entitlements
(1)
The employer must provide the new employer with any information that the new employer requires or may require—
(a)
to determine the employee’s entitlement to a service-related entitlement (whether legislative or otherwise):
(b)
to calculate the amount that the employee is to be paid for a service-related entitlement (whether legislative or otherwise).
(2)
However, the new employer may keep, use, or disclose information provided under this section only in accordance with the Privacy Act 2020.
69OKC Employer need not pay annual leave recognised by new employer
(1)
This section applies if the new employer agrees, as part of negotiations with the employer, to recognise some or all of an affected employee’s accrued annual leave that the employee has not taken or cashed up as at the end of their employment with the employer.
(2)
Despite section 123 of the Employment Leave Act 2026, the employer is not required to pay the employee for accrued annual leave that the new employer agrees to recognise.
69OKD Employer need not pay alternative leave recognised by new employer
(1)
This section applies if the new employer agrees, as part of negotiations with the employer, to recognise some or all of an affected employee’s accrued alternative leave that the employee has not taken or cashed up as at the end of their employment with the employer.
(2)
Despite section 123 of the Employment Leave Act 2026, the employer is not required to pay the employee for accrued alternative leave that the new employer agrees to recognise.
69OKE Employment of employee treated as continuous under Parental Leave and Employment Protection Act 1987
For the purposes of determining an employee’s rights and benefits to parental leave and parental leave payments under the Parental Leave and Employment Protection Act 1987,—
(a)
the employee’s period of employment with the employer that ends with the transfer must be treated as a period of employment with the new employer; and
(b)
the new employer must treat any notice given to or by the employer under that Act as if it had been given to or by the new employer.
69OKF Employer and new employer must keep records
(1)
An employer and a new employer must each keep a record of—
(a)
whether the new employer will treat an affected employee’s employment as continuous (see section 69OJ(3)(b)(ii)); and
(b)
the extent to which the new employer will recognise the affected employee’s entitlement, as at the end of their employment with the employer, to leave, and any other service-related entitlements, listed in section 69OJ(3)(b)(iii) (recognised entitlements); and
(c)
whether an affected employee was given the choice—
(i)
to transfer a recognised entitlement to the new employer; or
(ii)
to have the employer pay out the recognised entitlement; and
(d)
the employee’s choice to transfer the recognised entitlement or to have it paid out; and
(e)
how liability for the cost of the affected employee’s recognised entitlement is apportioned between the employer and the new employer under section 69OJA.
(2)
The record must be kept—
(a)
in written form; or
(b)
in a form or in a manner that allows the information in the record to be accessed easily and converted into written form.
(3)
The employer and the new employer must each keep the information that is in a record for not less than 6 years after the date on which the information is entered.
(4)
However, after the expiry of the period specified in subsection (3),—
(a)
if any of the information is relevant to any proceeding before the Authority or the court under this Act or the Employment Leave Act 2026, the employer must keep the relevant information for the duration of those proceedings, unless the Authority or the court waives this requirement; or
(b)
if any of the information is specified in a notice given by a Labour Inspector under section 229(1)(da), the employer must keep the information for the period specified in the notice.
69OKG Requests for access to record
(1)
The following persons may request that an employer or a new employer provide access to, or a copy of, or a certified extract from, information in the record relating to an employee:
(a)
the employee:
(b)
an authorised representative of the employee:
(c)
an authorised representative of a union of which the employee is a member:
(d)
a Labour Inspector.
(2)
An employer or a new employer who receives a request under subsection (1) must comply with the request as soon as practicable by—
(a)
allowing the employee, authorised representative of the employee, authorised representative of the union, or Labour Inspector to view the record; or
(b)
providing a copy of, or a certified extract from, the information concerned.
(3)
However, an employer or a new employer must not provide access to, or a copy of, or a certified extract from, any information in the employee’s record relating to the employee’s family violence leave unless—
(a)
a request made under subsection (1) is specifically for that information; and
(b)
the employer or the new employer receives the employee’s written consent for the employer or the new employer to provide the information to the person making the request.
(4)
For the purposes of subsection (3)(b), a representative referred to in subsection (1)(b) or (c) must not consent on behalf of the employee.
(5)
Despite subsection (3), nothing in this section limits an employer’s or a new employer’s obligation to disclose information under the Criminal Disclosure Act 2008.
(6)
Subsections (3) and (4) do not apply to a request made by a Labour Inspector under this section.
69OKH Failure to keep or provide access to record
(1)
Evidence that an employer or a new employer has failed to comply with section 69OKF or 69OKG may be given in an action before the Authority for 1 or more of the following purposes:
(a)
to recover a leave payment:
(b)
to recover a payment for cashed-up annual leave or alternative leave:
(c)
to recover a payment for annual leave or alternative leave if employment ends:
(d)
to recover a payment for working on a public holiday:
(e)
to recover an LCP:
(f)
to enforce an entitlement to annual leave, public holidays, alternative leave, sick leave, bereavement leave, or family violence leave against an employer.
(2)
For the purposes of subsection (1), an action before the Authority includes the determination of an objection to—
(a)
an improvement notice issued under section 223D; or
(b)
a demand notice served under section 224.
(3)
If, after hearing the evidence, the Authority is satisfied that the employer or the new employer failed to comply with section 69OKF or 69OKG and that the failure prevented the claimant from bringing an accurate claim, the Authority may make a finding to that effect.
(4)
If the Authority makes a finding under subsection (3), the Authority may accept as proved, in the absence of evidence to the contrary, statements made by the employee about—
(a)
the leave payment:
(b)
the payment for cashed-up annual leave or alternative leave:
(c)
the payment for annual leave or alternative leave paid to the employee if employment ends:
(d)
the payment for working on a public holiday:
(e)
the LCP paid to the employee:
(f)
the entitlement to annual leave, public holidays, alternative leave, sick leave, bereavement leave, or family violence leave.
Compare: 2003 No 129 s 83
164 Section 79 replaced (Eligible employee taking employment relations education leave entitled to ordinary pay)
Replace section 79 with:
79 Eligible employee’s entitlement to pay when taking employment relations education leave
(1)
This section applies to an eligible employee who takes a day or part of a day as employment relations education leave.
(2)
The employer must pay an eligible employee who is paid wages or salary (but who is not paid by piece work)—
(a)
for the greater of—
(i)
the number of hours that the employee would otherwise have worked, as specified in their employment agreement; and
(ii)
the number of hours that the employee was on leave; or
(b)
if the employer is unable to determine the number of hours under paragraph (a)(i), for the number of hours that the employee was on leave.
(3)
The employer must pay an eligible employee who is paid by piece work and by a salary or wages the greater of—
(a)
the sum of—
(i)
the payment for the number of hours determined under subsection (2) as if the employee were paid wholly by a salary or wages; and
(ii)
for each hour determined under subsection (2), the average hourly rate for piece work; and
(b)
for each hour determined under subsection (2), the applicable minimum hourly rate of pay.
(4)
The employer must pay an eligible employee who is paid wholly by piece work, for each hour determined under subsection (2)(a) or (b), the greater of—
(a)
the average hourly rate for piece work; and
(b)
the applicable minimum hourly rate of pay.
(5)
In addition to the amounts payable under subsections (2) to (4), the employer must pay the eligible employee any allowances payable for the period of leave.
(6)
However, an employer is not required to comply with subsections (2) to (5) in respect of any day for which the eligible employee is paid first week compensation or weekly compensation under the Accident Compensation Act 2001.
(7)
An employee’s average hourly rate for piece work must be calculated using the following formula:
f ÷ h = p
where—
- f
is the total amount of piece work wages that the employer has paid the employee for the pay periods starting in the 93 days before the start of the pay period in which the employment relations education leave is taken
- h
is the number of hours that the employee has worked (excluding hours the employee was on paid leave) for the employer in the pay periods starting in the 93 days before the start of the pay period in which the employment relations education leave is taken
- p
is the average hourly rate for piece work.
(8)
In this section, applicable minimum hourly rate means the hourly rate of the applicable minimum rate of wages prescribed under section 4, 4A, or 4B of the Minimum Wage Act 1983.
165 Cross-heading above section 130 replaced
Replace the cross-heading above section 130 with:
Wages and time record and pay statements
166 Section 130 amended (Wages and time record)
(1)
Replace section 130(1)(g) with:
(g)
the number of hours the employee has worked each day in each pay period:
(ga)
the amount paid to the employee in each pay period itemised by category (for example, ordinary rate, overtime rate, piece work rate, penal rate, commission, or allowances):
(gb)
the number of hours for which any leave compensation payment (as defined in the Employment Leave Act 2026) is paid to the employee in each pay period and the leave compensation payment paid for those hours:
(2)
Replace section 130(1C), (1D), and (2) with:
(1C)
In subsection (1B), the usual hours of an employee who is remunerated by way of salary include any extra hours worked by the employee in accordance with the employee’s employment agreement.
(1D)
Despite subsection (1C), the employer must record in the wages and time record any hours the employee works under an availability provision that need to be recorded to enable the employer to comply with the employer’s general obligation under section 4B(1).
(2)
An employer must keep the information that is in the wages and time record for not less than 6 years after the date on which the information is entered.
(2A)
However, after the expiry of the period specified in subsection (2),—
(a)
if any of the information is relevant to any proceeding before the Authority or the court under this Act or the Employment Leave Act 2026, the employer must keep the relevant information for the duration of those proceedings, unless the Authority or the court waives this requirement; or
(b)
if any of the information is specified in a notice given by a Labour Inspector under section 229(1)(da) of this Act, the employer must keep the information for the period specified in the notice.
(2B)
An employee or a person authorised under section 236 to represent an employee may request access to, or a copy of, or a certified extract from, information in the wages and time record relating to the employee.
(2C)
An employer who receives a request under subsection (2B) must comply with the request as soon as practicable by (as applicable)—
(a)
allowing the employee or the person authorised under section 236 to view the information; or
(b)
providing a copy of, or a certified extract from, the information concerned.
(2D)
However, an employer must not provide access to, or a copy of, or a certified extract from, any information in the wages and time record relating to the employee’s family violence leave unless—
(a)
a request made under subsection (2B) is specifically for that information; and
(b)
in the case of a request from a person authorised under section 236, the employer receives the employee’s written consent for the employer to provide the information to that person.
(2E)
For the purposes of subsection (2D)(b), a representative referred to in subsection (2B) must not consent on behalf of the employee.
(2F)
Subsections (2D) and (2E) do not apply to a request made by a Labour Inspector under section 229(1)(d).
(3)
After section 130(5), insert:
(6)
In this section, availability provision has the meaning given to it in section 67D(1).
167 New section 130A and cross-heading inserted
After section 130, insert:
130A Employer must provide employee with pay statement for each pay period
(1)
An employer must provide a pay statement to an employee for each pay period during which the employee worked for the employer or was on paid leave.
(2)
The pay statement must specify—
(a)
the employee’s name:
(b)
the employee’s IRD number:
(c)
the pay period to which the pay statement relates:
Payments
(d)
the amount paid to the employee in each pay period itemised by category (for example, ordinary rate, leave compensation payment (as defined in the Employment Leave Act 2026), overtime rate, piece work rate, penal rate, commission, or allowances):
(e)
the net amount of the payment:
Deductions
(f)
any deductions that the employer is required or entitled to make from the employee’s pay for the purposes of income tax or any other purpose, including—
(i)
the amount of any deduction made under Part 10 of the Child Support Act 1991:
(ii)
the amount of any deduction made under section 36 of the Student Loan Scheme Act 2011:
(iii)
the amount of any deduction made under the KiwiSaver Act 2006:
(g)
the amount of any payroll donation:
Employer contributions
(h)
the amount of any employer contribution under any other legislation, including, for example, any employer contribution as defined in section 4(1) of the KiwiSaver Act 2006:
Leave information
(i)
the following leave information for the pay period (as applicable):
(i)
the annual leave information specified in section 127(1)(6) to (8) and (10) of the Employment Leave Act 2026:
(ii)
the public holiday information specified in section 127(1)(13) to (18) of the Employment Leave Act 2026:
(iii)
the alternative leave information specified in section 127(1)(19) to (21) and (23) of the Employment Leave Act 2026:
(iv)
the sick leave information specified in section 127(1)(24) to (26) of the Employment Leave Act 2026:
(v)
the bereavement leave information specified in section 127(1)(27) of the Employment Leave Act 2026:
Termination of employment information
(j)
if the employee ceases employment with the employer,—
(i)
the final date on which the employee is employed; and
(ii)
any amount paid to the employee for annual leave or alternative leave under section 123 of the Employment Leave Act 2026.
(3)
A pay statement may include any other information determined by the employer.
(4)
However,—
(a)
an employer must not include the following information in a pay statement:
(i)
a statement that an amount paid to an employee is a payment in respect of the employee’s entitlement to paid family violence leave:
(ii)
a statement that a period of leave taken by the employee has been taken as a period of paid family violence leave:
(iii)
the balance of an employee’s entitlement to paid family violence leave; and
(b)
an amount paid to an employee for taking a period of paid family violence leave—
(i)
must not be recorded on a pay statement as an amount paid to the employee for taking a period of leave; and
(ii)
must instead be recorded on a pay statement as a non-identifiable component of the employee’s pay.
(5)
In this section, IRD number means a tax file number as defined in section 3(1) of the Tax Administration Act 1994.
Recovery of wages
168 Section 229 amended (Powers of Labour Inspectors)
(1)
In section 229(1)(c)(i), delete “holiday and”
.
(2)
Replace section 229(1)(d) with:
(d)
the power to require an employer to supply to the Labour Inspector a copy of 1 or more of the following in relation to an employee of the employer:
(i)
the wages and time record:
(ii)
the leave record:
(iii)
the employee’s employment agreement:
(da)
the power to require an employer to keep an employee’s information in a wages and time record or a leave record, if the Labour Inspector considers it necessary for that information to be kept after the expiry of the period specified in section 130(2A)(b) of this Act or section 129(2)(b) of the Employment Leave Act 2026, by giving notice to the employer,—
(i)
before the expiry of the period specified in section 130(2A)(b) of this Act or section 129(2)(b) of the Employment Leave Act 2026, requiring the employer to keep the information for a further period of up to 1 year after the expiry of that period; or
(ii)
before the expiry of any previous notice given under this subsection, requiring the employer to keep the information for a further period of up to 1 year after the expiry of the previous notice:
(3)
In section 229(3), replace “subsection (1)(c) or (d)”
with “subsection (1)(c), (d), or (da)”
.
(4)
After section 229(7), insert:
(8)
In this section, leave record means a record required to be kept under section 127 of the Employment Leave Act 2026.
169 Section 232 amended (Compilation of wages and time record)
In section 232(5), replace “holiday and leave record kept under section 81 of the Holidays Act 2003”
with “leave record required to be kept under section 127 of the Employment Leave Act 2026”
.
170 Section 235A amended (Interpretation)
(1)
In section 235A, definition of infringement offence, paragraph (a), replace “or 130(1) of this Act or section 81(2) of the Holidays Act 2003”
with “130(1), or 130A of this Act or sections 127 to 129 of the Employment Leave Act 2026”
.
(2)
In section 235A, definition of infringement offence, replace paragraph (c) with:
(c)
a failure by an employer to comply with—
(i)
a requirement imposed under section 229(1)(d) within the time period required by section 229(2A); or
(ii)
a notice given under section 229(1)(da); or
(d)
a failure by an employer to comply with the requirements of section 146, 147, or 148 of the Employment Leave Act 2026.
Amendments to Health and Safety at Work Act 2015
171 Principal Act
Section 172 amends the Health and Safety at Work Act 2015.
172 Schedule 2 amended
(1)
In Schedule 2, replace clause 12(3)(a) with:
(a)
in the case of a health and safety representative who is an employee of the PCBU, the amount determined under clause 12A:
(2)
In Schedule 2, after clause 12, insert:
12A Health and safety representative’s entitlement to pay when attending training
(1)
This clause sets out how to determine the amount payable under clause 12(3)(a).
(2)
The employer must pay a health and safety representative who is paid wages or salary (but who is not paid by piece work)—
(a)
for the greater of—
(i)
the number of hours that the representative would otherwise have worked, as specified in their employment agreement; and
(ii)
the number of hours that the representative was on leave; or
(b)
if the employer is unable to determine the number of hours under paragraph (a)(i), for the number of hours that the representative was on leave.
(3)
The employer must pay a health and safety representative who is paid by piece work and by a salary or wages the greater of—
(a)
the sum of—
(i)
the payment for the number of hours determined under subclause (2) as if the representative were paid wholly by a salary or wages; and
(ii)
for each hour determined under subclause (2), the average hourly rate for piece work; and
(b)
for each hour determined under subclause (2), the applicable minimum hourly rate of pay.
(4)
The employer must pay a health and safety representative who is paid wholly by piece work, for each hour determined under subclause (2), the greater of—
(a)
the average hourly rate for piece work; and
(b)
the applicable minimum hourly rate of pay.
(5)
In addition to the amounts payable under subclauses (2) to (4), the employer must pay the representative any allowances payable for the period of leave.
(6)
A representative’s average hourly rate for piece work must be calculated using the following formula:
f ÷ h = p
where—
- f
is the total amount of piece work wages that the employer has paid the representative for the pay periods starting in the 93 days before the start of the pay period in which the representative attends the training
- h
is the number of hours that the representative has worked (excluding hours the representative was on paid leave) for the employer in the pay periods starting in the 93 days before the start of the pay period in which the representative attends the training
- p
is the average hourly rate for piece work.
(7)
In this clause, applicable minimum hourly rate means the hourly rate of the applicable minimum rate of wages prescribed under section 4, 4A, or 4B of the Minimum Wage Act 1983.
Amendment to KiwiSaver Act 2006
173 Principal Act
Section 174 amends the KiwiSaver Act 2006.
174 Section 12 amended (Temporary employment)
Repeal section 12(1)(c).
Amendment to Legal Services Act 2011
175 Principal Act
Section 176 amends the Legal Services Act 2011.
176 Section 41H replaced (Protected earnings)
Replace section 41H with:
41H Protected net earnings rate
(1)
Despite anything in sections 41B to 41G, if a deduction notice is issued to an employer of an aided person, the employer must not, in making deductions under the deduction notice, reduce the aided person’s net earnings in respect of any pay period (within the meaning of section YA 1 of the Income Tax Act 2007) to an amount that is less than 60% of the amount calculated as being the aided person’s net earnings in respect of a pay period.
(2)
For the purposes of this section, the aided person’s net earnings in respect of a pay period is the balance left after deducting from the PAYE income payment the amount of any tax withheld or deducted under the PAYE rules of the Income Tax Act 2007.
(3)
For the purposes of this section, if deductions are required to be made from a payment of a kind described in any of paragraphs (b) to (d) of the definition of payment in section 41A,—
(a)
the payment is deemed to be salary or wages; and
(b)
the person required to make the payment is deemed to be the employer of the aided person.
(4)
In this section, PAYE income payment has the meaning given to it in section RD 3 of the Income Tax Act 2007.
Amendment to Minimum Wage Act 1983
177 Principal Act
Section 178 amends the Minimum Wage Act 1983.
178 Section 6 amended (Payment of minimum wages)
In section 6, insert as subsection (2):
(2)
For the purposes of determining whether an employer has complied with subsection (1), any leave compensation payment as defined in section 5(1) of the Employment Leave Act 2026 must be disregarded.
Amendments to Parental Leave and Employment Protection Act 1987
179 Principal Act
180 Section 42 amended (Employer’s obligations in respect of remuneration and holiday pay)
(1)
In the heading to section 42, delete “and holiday pay”
.
(2)
In section 42(1), replace “Subject to subsections (2) and (3), the”
with “The”
.
(3)
Repeal section 42(2).
181 Section 71C amended (Interpretation of this Part)
In section 71C, repeal the definition of ordinary weekly pay.
182 Section 71K amended (Start of parental leave payment)
After section 71K(3), insert:
(4)
Subsection (3) applies despite anything to the contrary in the Employment Leave Act 2026.
183 Section 71M amended (Amount of parental leave payment)
(1)
Replace section 71M(1)(b)(i) with:
(i)
100% of the average of the employee’s gross weekly earnings, from all employments, for the relevant pay periods as at the relevant date; and
(2)
After section 71M(1B), insert:
(2)
In this section,—
relevant date means,—
(a)
in relation to an employee’s entitlement to a parental leave payment,—
(i)
the date on which the employee or their employer provides further information relating to the employee’s entitlement to a parental leave payment, whether on the employee’s own initiative or following a request under section 71W, if that information is provided—
(A)
after the date specified in subparagraph (ii)(A); but
(B)
before the date specified in subparagraph (ii)(B); or
(ii)
in all other cases, the earlier of—
(A)
the date on which the employee applies for a parental leave payment under section 71I, if the application is made before the date on which the employee commences parental leave; and
(B)
the date on which a parental leave payment is payable to the employee under section 71K; or
(b)
if an employee’s entitlement to a parental leave payment is transferred to their spouse or partner (the transferee) under section 71E,—
(i)
the date on which the employee or the transferee provides further information relating to the transfer, whether that information is provided after the date specified in subparagraph (ii)(A) but before the date specified in subparagraph (ii)(B) and that information is provided—
(A)
on the initiative of the employee or the transferee; or
(B)
following a request under section 71W; or
(ii)
in all other cases, the earlier of—
(A)
the date on which the transferee applies to accept the application to transfer; and
(B)
the date on which the entitlement becomes payable under section 71K to the transferee
relevant pay periods means,—
(a)
for an employee who is paid weekly, the 4 most recent regular pay periods; or
(b)
for an employee who is paid fortnightly or half-monthly, the 2 most recent regular pay periods; or
(c)
for an employee who is paid monthly or once every 4 weeks, the most recent regular pay period; or
(d)
for an employee who is paid in any other way, the most recent regular pay periods comprising approximately 4 weeks.
184 Section 72 repealed (Contracting out: holiday pay while on parental leave)
Repeal section 72.
185 Schedule 1AA amended
In Schedule 1AA,—
(a)
insert the Part set out in Schedule 4 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
Amendment to Parental Leave and Employment Protection Regulations 2016
186 Principal regulations
187 Regulation 11 amended (Information relating to employees that must be provided)
Replace regulation 11(3)(b) with:
(b)
details of the employee’s average gross weekly earnings for the relevant pay period, as at the relevant date (see section 71M of the Act) or average weekly income from work (calculated in accordance with section 71CAA of the Act), whichever is the greater; and
Amendment to Public and Community Housing Management Act 1992
188 Principal Act
189 Section 153 replaced (Protected earnings)
Replace section 153 with:
153 Protected net earnings rate
(1)
Despite anything in sections 146 to 151, if a deduction notice is issued to an employer of a tenant, the employer must not, in making deductions under the deduction notice, reduce the tenant’s net earnings in respect of any pay period (within the meaning of section YA 1 of the Income Tax Act 2007) to an amount that is less than 60% of the amount calculated as being the tenant’s net earnings in respect of a pay period.
(2)
For the purposes of this section, the tenant’s net earnings in respect of a pay period is the balance left after deducting from the PAYE income payment the amount of any tax withheld or deducted under the PAYE rules of the Income Tax Act 2007.
(3)
In this section, PAYE income payment has the meaning given to it in section RD 3 of the Income Tax Act 2007.
Amendments to Social Security Act 2018
190 Principal Act
Sections 191 to 193 amend the Social Security Act 2018.
191 Section 445 amended (Regulations: further provisions on deductions)
Replace section 445(1)(j) with:
(j)
provide for protected earnings, if a deduction notice is issued to an employer of a debtor, by prohibiting the employer, in making deductions under the deduction notice, from reducing the amount paid to the debtor by way of net earnings in respect of any pay period (within the meaning of section YA 1 of the Income Tax Act 2007) to an amount that is less than a proportion (prescribed by the regulations) of the amount calculated as being the debtor’s net earnings in respect of the pay period:
192 Schedule 2 amended
In Schedule 2, definition of specified termination payments, replace paragraph (b) with:
(b)
a payment for annual leave or alternative leave, including a payment in accordance with section 123 of the Employment Leave Act 2026:
193 Schedule 3 amended
(1)
In Schedule 3, clause 6(d), replace “holiday pay”
with “a payment for annual leave or alternative leave, which includes a payment in accordance with section 123 of the Employment Leave Act 2026”
.
(2)
In Schedule 3, clause 13, cross-heading above subclause (1A), replace “annual holiday pay income”
with “annual leave income”
.
(3)
In Schedule 3, clause 13(1A), replace “annual holiday pay income”
with “annual leave income”
.
(4)
In Schedule 3, clause 13, cross-heading above subclause (3A), replace “annual holiday pay income”
with “annual leave income”
.
(5)
In Schedule 3, clause 13(3A), replace “annual holiday pay income”
with “annual leave income”
.
(6)
In Schedule 3, clause 13(3B),—
(a)
replace “annual holidays”
with “annual leave”
; and
(b)
replace “the annual holiday pay income”
with “any annual leave income described in subclause (3F)(a)”
.
(7)
In Schedule 3, clause 13(3C),—
(a)
replace “the annual holiday pay income”
with “annual leave income”
in each place; and
(b)
paragraph (a), replace “annual holidays”
with “annual leave”
.
(8)
In Schedule 3, clause 13(3D),—
(a)
replace “annual holidays”
with “annual leave”
in each place; and
(b)
paragraph (b), replace “annual holiday pay income”
with “annual leave income”
.
(9)
In Schedule 3, after clause 13(3E), insert:
(3F)
For the purposes of this clause, annual leave income means the following:
(a)
a leave payment for annual leave, including a leave payment in accordance with section 119(1)(a)(i) of the Employment Leave Act 2026:
(b)
a payment for cashed-up annual leave, including a payment in accordance with section 122(1)(a) of the Employment Leave Act 2026:
(c)
a payment for annual leave if employment ends, including a payment in accordance with section 123(1)(a) of the Employment Leave Act 2026.
Amendments to Social Security Regulations 2018
194 Principal regulations
195 Regulation 182 amended (Period of benefit stand down: interpretation)
In regulation 182, definition of specified excluded payment, paragraph (d), replace “holiday pay”
with “a payment for annual leave or alternative leave, which includes a payment in accordance with section 123 of the Employment Leave Act 2026”
.
196 Regulation 224 replaced (Protected earnings)
Replace regulation 224 with:
224 Protected net earnings rate
(1)
If a deduction notice is issued to an employer of a debtor, the employer must not, in making deductions under the deduction notice, reduce the debtor’s net earnings in respect of any pay period (within the meaning of section YA 1 of the Income Tax Act 2007) to an amount that is less than 60% of the amount calculated as being the debtor’s net earnings in respect of a pay period.
(2)
This regulation overrides anything to the contrary in regulations 216 to 223, 225, and 226.
(3)
In this regulation,—
net earnings in respect of a pay period means, in relation to the debtor, the balance left after deducting from the PAYE income payment the amount of any tax withheld or deducted under the PAYE rules of the Income Tax Act 2007
PAYE income payment has the meaning given to it in section RD 3 of the Income Tax Act 2007.
Amendments to Volunteers Employment Protection Act 1973
197 Principal Act
Sections 198 and 199 amend the Volunteers Employment Protection Act 1973.
198 Section 14P amended (Employer’s obligations in respect of remuneration and holiday pay)
(1)
In the heading to section 14P, delete “and holiday pay”
.
(2)
In section 14P(1), replace “Subject to subsection (2), the”
with “The”
.
(3)
Repeal section 14P(2).
199 Section 14Q repealed (Power to increase entitlement to holiday pay)
Repeal section 14Q.
Other consequential amendments
200 Consequential amendments
Amend the Acts specified in Schedule 2 as set out in that schedule.
Schedule 1 Transitional, savings, and related provisions
Contents
Part 1 Savings provisions
1 Holidays Act saved for specified State school employees and employers
(1)
Despite the repeal of the Holidays Act 2003 by section 150, that Act, as in force immediately before its repeal, continues to apply to—
(a)
a person who is—
(i)
employed by the board of a State school; and
(ii)
paid by a payroll service established under section 578 of the Education and Training Act 2020; and
(b)
a person who is the employer of a person described in paragraph (a).
(2)
Subclause (1) applies to a person described in subclause (1)—
(a)
only until the day before a date set by an Order in Council made under section 4(1)(b); and
(b)
only if the Order in Council relates to that person.
(3)
In this clause, board and State school have the meanings set out in section 10(1) of the Education and Training Act 2020.
2 Holidays Act saved in specified circumstances
(1)
Despite the repeal of the Holidays Act 2003 by section 150, that Act, as in force immediately before its repeal, continues to apply to an employer who, under clause 6, is not required to comply with provisions of this Act that relate to an employee’s entitlements and payments.
(2)
Subclause (1) applies only until the day before the start of the employee’s first pay period that starts on or after the commencement date.
3 Other legislation saved for specified State school employees and employers
(1)
Despite the amendments to legislation under subpart 6 of Part 3 and Schedule 2, that legislation, as in force immediately before this Act came into force, continues to apply to—
(a)
a person who is—
(i)
employed by the board of a State school; and
(ii)
paid by a payroll service established under section 578 of the Education and Training Act 2020; and
(b)
a person who is the employer of a person described in paragraph (a).
(2)
Subclause (1) applies only until a date or dates set by Order in Council made under section 4(1)(b).
(3)
However, subclause (1) does not apply to the amendments made by the following provisions:
(a)
section 179 (in so far as it relates to sections 181, 183, and 185 to 187):
(b)
(c)
(d)
Part 2 Transitional provisions
4 Application of this Part
5 Interpretation
In this schedule, unless the context otherwise requires,—
commencement date means the date on which this clause comes into force
Holidays Act means the Holidays Act 2003
previous alternative holidays means the alternative holidays to which an employee would have been entitled under the Holidays Act (but that the employee had not cashed up or taken before the commencement date)
previous annual holidays means the total of the following types of annual holidays to which an employee would have been entitled under the Holidays Act (but that the employee had not cashed up or taken before the commencement date):
(a)
the annual holidays to which the employee was entitled after the end of the most recently completed 12 months of continuous employment under section 16 of that Act (type A previous annual holidays); and
(b)
any other annual holidays to which the employee would have been entitled if they had ceased employment on the date immediately before the commencement date (type B previous annual holidays)
previous sick leave means the total of the following types of sick leave to which an employee would have been entitled under the Holidays Act (but that the employee had not taken before the commencement date):
(a)
the sick leave to which the employee was entitled at the end of the applicable period of employment under section 63 of that Act (type A previous sick leave); and
(b)
the sick leave—
(i)
to which the employee would have become entitled, under section 63(1) or (2) of that Act, after the commencement date; but
(ii)
that is reduced to be proportionate to the length of time between,—
(A)
if the employee has been employed for less than 6 months on the commencement date, the employee’s start date and the commencement date; or
(B)
in all other cases, the end of the employee’s previous 12-month period of employment under section 63 of that Act and the commencement date (type B previous sick leave).
Existing employers must comply with Act by employee’s first pay period
6 Existing employers must comply with Act by employee’s first pay period
(1)
This clause applies to an employer who employed an employee immediately before the commencement date.
(2)
The employer is not required to comply with provisions of this Act that relate to the employee’s entitlements and payments until the start of the employee’s first pay period that starts on or after the commencement date.
Transition of employment agreements
7 Application of clauses 8 and 9
8 Employer must comply with requirements from commencement date
(1)
This clause applies during the period—
(a)
starting on the commencement date; and
(b)
ending on the day before the first anniversary of the commencement date.
(2)
The employer must—
(a)
comply with the employment agreement; and
(b)
comply with this Act.
(3)
However, a term of the employment agreement prevails if it is more favourable to the employee than an equivalent term under this Act.
(4)
This clause does not apply to an employment agreement on and from the date on which it is amended or replaced if the amended or new agreement complies with clause 9.
9 Employment agreement must comply with this Act 1 year after commencement date
(1)
This clause applies on and from the first anniversary of the commencement date.
(2)
The employer of an employee must ensure that the employee’s employment agreement complies with this Act and, in particular, must ensure that,—
(a)
if the employment agreement specifies the employee’s level of entitlement to annual leave, the level of entitlement is specified in accordance with subpart 1 of Part 2 as a proportion of an hour for each standard hour worked:
(b)
if the employment agreement specifies the employee’s entitlement to public holidays, the entitlement is specified in accordance with subpart 2 of Part 2:
(c)
if the employment agreement specifies the employee’s level of entitlement to alternative leave, the level of entitlement is specified in accordance with subpart 3 of Part 2 as a proportion of an hour for each hour worked:
(d)
if the employment agreement specifies the employee’s level of entitlement to sick leave, the level of entitlement is specified in accordance with subpart 4 of Part 2 as a proportion of an hour for each standard hour worked:
(e)
if the employment agreement provides for the employee’s leave payments, the leave payment is specified in accordance with subpart 7 of Part 2:
(f)
the employment agreement specifies payments for working on public holidays in accordance with subpart 7 of Part 2:
(g)
in relation to an employee who works casual hours or additional hours, the employment agreement provides for the employer to pay a leave compensation payment in accordance with subpart 8 of Part 2.
(3)
However, if an employment agreement does not comply with subclause (2), the minimum entitlements provided under this Act prevail.
Transition of previous annual holidays: employees who work casual hours
10 Previous annual holidays: employees who work casual hours
(1)
This clause applies to an employee who, on the commencement date,—
(a)
is an employee who works casual hours; and
(b)
has previous annual holidays.
(2)
The employer of the employee must, on the commencement date, pay the employee—
(a)
for their type A previous annual holidays in accordance with section 24 of the Holidays Act as in force immediately before the commencement date:
(b)
for their type B previous annual holidays in accordance with section 25 of the Holidays Act as in force immediately before the commencement date.
Transition of previous annual holidays: employees who work standard hours
11 Previous annual holidays: employees who work standard hours
On the commencement date, an employer of an employee who works standard hours and who has previous annual holidays must convert those previous annual holidays to annual leave hours under clause 12.
12 Converting previous annual holidays to annual leave hours
(1)
This clause applies to previous annual holidays for the purposes of clause 11.
(2)
The employer of an employee with type A previous annual holidays must convert those previous annual holidays to annual leave hours using the following formula:
w × owh = a
where—
- w
is the number of whole or part weeks of the employee’s relevant previous annual holidays
- owh
is the employee’s ordinary weekly hours (see subclause (4))
- a
is the number of the employee’s annual leave hours.
(3)
The employer of an employee with type B previous annual holidays must convert those previous annual holidays to annual leave hours using the following formula:
owh × [(ah × d) ÷ y] = b
where—
- owh
is the employee’s ordinary weekly hours (see subclause (4))
- ah
is the employee’s annual holidays entitlement under section 16 of the Holidays Act
- d
is—
(a)
the number of days since,—
(i)
if the employee’s employment started less than 12 months before the commencement date, the employee’s start date; or
(ii)
in all other cases, the last date, before the commencement date, on which the employee became entitled to annual holidays under section 16(1) of the Holidays Act; but
(b)
does not include, unless the employee and their employer agree otherwise, any days of unpaid leave except—
(i)
unpaid sick leave, unpaid bereavement leave, or unpaid family violence leave; or
(ii)
any other unpaid leave for a period of no more than 1 week
- y
is 365 or, if the current year is a leap year, 366 days
- b
is the number of the employee’s annual leave hours.
(4)
For the purposes of item owh in subclauses (2) and (3), an employee’s ordinary weekly hours means,—
(a)
if the employee’s employment agreement specifies the number of standard hours that the employee works in a week, that number; or
(b)
if the employee’s employment agreement specifies the number of standard hours but the employee does not work the same number of standard hours each week, the number of hours calculated under subclause (5); or
(c)
if neither paragraph (a) nor paragraph (b) applies, the number of hours calculated under subclause (6).
(5)
For the purposes of subclause (4)(b), the number of ordinary weekly hours must be calculated using the following formula:
(tsh ÷ td) × 7 = o
where—
- tsh
is the total number of standard hours in the employee’s work cycle
- td
is the total number of days in the employee’s work cycle, including any days within the work cycle on which the employee does not work
- o
is the number of the employee’s ordinary weekly hours.
(6)
For the purposes of subclause (4)(c), the number of ordinary weekly hours must be calculated using the following formula:
thw ÷ x = o
where—
- thw
is the total number of hours that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
in relation to converting type B previous annual leave, if the employee has worked for the employer for fewer than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the start of the first pay period that starts after the commencement date
- x
is the number of whole or part weeks used for the purposes of item thw
- o
is the number of the employee’s ordinary weekly hours.
13 Employee taking previous annual holidays before first start date anniversary
(1)
This clause applies to an employee who works standard hours and who,—
(a)
immediately before the commencement date, has an employment agreement with an employer; and
(b)
has previous annual holidays.
(2)
During the period starting on the commencement date and ending before the employee’s first start date anniversary after the commencement date,—
(a)
the employee may request to take their previous annual holidays; and
(b)
an employer may require the employee to take only their type A previous annual holidays.
(3)
An employer—
(a)
must, if an employee makes a request to take any type A previous annual holidays before the employee’s first start date anniversary after the commencement date, allow the employee to take those holidays in that period; and
(b)
must not unreasonably withhold consent to an employee’s request under subclause (2)(a).
(4)
For the purposes of the employee taking their previous annual holidays, the provisions of this Act apply.
14 Employee cashing up type A previous annual holidays before first start date anniversary
(1)
This clause applies to an employee who works standard hours and who,—
(a)
immediately before the commencement date, has an employment agreement with an employer; and
(b)
has previous annual holidays.
(2)
During the period starting on the commencement date and ending on the employee’s first start date anniversary after the commencement date, the employee may cash up their type A previous annual holidays.
(3)
The maximum amount of type A previous annual holidays that an employee may cash up must be determined, as at the commencement date, using the following formula:
(cdw × owh) × 0.25 − (cw × owh) = max
where—
- cdw
is the number of whole or part weeks of the employee’s type A previous annual holidays
- owh
is the employee’s ordinary weekly hours determined in accordance with subclause (4)
- cw
is the number of weeks of annual holidays that the employee cashed up under the Holidays Act in the period—
(a)
starting on the date after the end of the employee’s most recently completed 12 months of continuous employment under section 16 of the Holidays Act (as that section applied immediately before the commencement date); and
(b)
ending on the commencement date
- max
is the maximum number of hours of type A previous annual holidays that the employee may apply to cash up.
(4)
For the purposes of item owh in subclause (3), an employee’s ordinary weekly hours means,—
(a)
if the employee’s employment agreement specifies the number of standard hours that the employee works in a week, that number; or
(b)
if the employee’s employment agreement specifies the number of standard hours but the employee does not work the same number of standard hours each week, the number of hours calculated under subclause (5); or
(c)
if neither paragraph (a) nor paragraph (b) applies, the number of hours calculated under subclause (6).
(5)
For the purposes of subclause (4)(b), the number of ordinary weekly hours must be calculated using the following formula:
(tsh ÷ td) × 7 = owh
where—
- tsh
is the total number of standard hours in the employee’s work cycle
- td
is the total number of days in the employee’s work cycle, including any days within the work cycle on which the employee does not work
- owh
is the number of the employee’s ordinary weekly hours.
(6)
For the purposes of subclause (4)(c), the number of ordinary weekly hours must be calculated using the following formula:
thw ÷ x = owh
where—
- thw
is the total number of hours that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
if the employee has worked for the employer for fewer than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the pay period that starts after the commencement date
- x
is the number of weeks used for the purposes of item thw
- owh
is the number of the employee’s ordinary weekly hours.
(7)
However, an employee must not apply to cash up type A previous annual holidays under this clause if the employee’s maximum amount of annual leave hours calculated under this clause is 0 or less.
15 Record-keeping: previous annual holidays
(1)
An employer of an employee described in clause 13(1) must record the following amounts separately:
(a)
the amount of the employee’s type A previous annual holidays that the employer has converted to annual leave hours under clause 12:
(b)
the amount of the employee’s type B previous annual holidays that the employer has converted to annual leave hours under clause 12:
(c)
the total amount of the employee’s previous annual holidays that the employer has converted to annual leave hours under clause 12:
(2)
The employer must keep the records under subclause (1) in the leave record required under section 127.
Transition of previous sick leave: employees who work casual hours
16 Previous sick leave: employees who work casual hours
(1)
This clause applies to an employee who, on the commencement date,—
(a)
is an employee who works casual hours; and
(b)
has previous sick leave.
(2)
The employer of the employee is not required to pay the employee for their previous sick leave and the employee no longer has any previous sick leave.
Transition of previous sick leave: employees who work standard hours
17 Previous sick leave: employees who work standard hours
On the commencement date, an employer of an employee who works standard hours and who has previous sick leave must convert that previous sick leave to sick leave hours under clause 18.
18 Converting previous sick leave to sick leave hours
(1)
This clause applies to previous sick leave for the purposes of clause 17.
(2)
The employer of an employee with type A previous sick leave must convert that previous sick leave to sick leave hours using the following formula:
d × odh = s
where—
- d
is the number of days of the employee’s previous sick leave
- odh
is the employee’s ordinary daily hours (see subclause (4))
- s
is the number of the employee’s sick leave hours.
(3)
The employer of an employee with the type B previous sick leave must convert that previous sick leave to sick leave hours using the following formula:
odh × [(s × d) ÷ y] = b
where—
- odh
is the employee’s ordinary daily hours (see subclause (4))
- s
is the employee’s annual sick leave entitlement under section 65(2) of the Holidays Act
- d
is the number of days since,—
(a)
if the employee’s employment started less than 6 months before the commencement date, the employee’s start date; or
(b)
in all other cases, the employee last became entitled to sick leave before the commencement date
- y
is 365 or, if the current year is a leap year, 366 days
- b
is the number of the employee’s sick leave hours.
(4)
For the purposes of item odh in subclauses (2) and (3), the number of ordinary daily hours must be calculated using the following formula:
th ÷ d = odh
where—
- th
is the total number of hours that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
in relation to converting type B previous sick leave, if the employee has worked for the employer for less than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the start of the first pay period that starts after the commencement date
- d
is the total number of days that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
if the employee has worked for the employer for less than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the pay period that starts after the commencement date
- odh
is the employee’s ordinary daily hours.
19 Employee taking previous sick leave
(1)
This clause applies to an employee who works standard hours and who—
(a)
immediately before the commencement date, has an employment agreement with an employer; and
(b)
has previous sick leave.
(2)
For the purposes of the employee taking their previous sick leave, the provisions of this Act apply.
20 Record-keeping: previous sick leave
(1)
An employer of an employee described in clause 19(1) must record the following amounts separately:
(a)
the amount of the employee’s type A previous sick leave that the employer has converted under clause 18:
(b)
the amount of the employee’s type B previous sick leave that the employer has converted under clause 18:
(c)
the total amount of the employee’s previous sick leave that the employer has converted under clause 18.
(2)
The employer must keep the records under subclause (1) in the leave record required under section 127.
Transition of previous alternative holidays
21 Previous alternative holidays
On the commencement date, an employer of an employee who has previous alternative holidays must convert those previous alternative holidays to alternative leave hours under clause 22.
22 Converting previous alternative holidays to alternative leave hours
(1)
This clause applies to previous alternative holidays for the purposes of clause 21.
(2)
The employer of an employee with previous alternative holidays must convert those previous alternative holidays to alternative leave hours using the following formula:
d × odh = ah
where—
- d
is the number of days of the employee’s previous alternative holidays
- odh
is the employee’s ordinary daily hours (see subclause (3))
- ah
is the number of the employee’s alternative leave hours.
(3)
For the purposes of item odh in subclause (2), the number of ordinary daily hours must be calculated using the following formula:
th ÷ d = odh
where—
- th
is the total number of hours that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
if the employee has worked for the employer for fewer than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the start of the first pay period that starts after the commencement date
- d
is the total number of days that the employee worked (or was on paid or unpaid leave) during—
(a)
the pay periods starting in the 93 days before the first day of the first pay period that starts after the commencement date; or
(b)
if the employee has worked for the employer for fewer than 93 days before the first day of the first pay period that starts after the commencement date, the pay periods starting in the period—
(i)
starting on the employee’s start date; and
(ii)
ending on the day before the pay period that starts after the commencement date
- odh
is the employee’s ordinary daily hours.
23 Employee taking previous alternative holidays
(1)
This clause applies to an employee who,—
(a)
immediately before the commencement date, has an employment agreement with an employer; and
(b)
has previous alternative holidays.
(2)
For the purposes of taking their previous alternative holidays, the provisions of this Act apply.
24 Record-keeping: previous alternative holidays
(1)
An employer of an employee described in clause 23(1) must record the amount of the employee’s previous alternative holidays that the employer has converted to alternative leave hours under clause 22.
(2)
The employer must keep the records under subclause (1) in the leave record required under section 127.
Transition to bereavement leave under this Act
25 Entitlement to bereavement leave
An employee who is not yet entitled to bereavement leave under the Holidays Act is entitled to bereavement leave on and from the commencement date.
Transition to family violence leave under this Act
26 Entitlement to family violence leave
An employee who is not yet entitled to family violence leave under the Holidays Act is entitled to family violence leave under this Act—
(a)
on and from the commencement date; and
(b)
for each subsequent 12-month period starting on the employee’s start date anniversary.
Consultation for remediation process regulations
27 Pre-commencement consultation: remediation process regulations
Consultation for the purpose of making regulations under section 153 that is carried out at any time before the commencement date is treated as consultation for the purposes of section 153(2)(c).
Part 3 Transitional provisions for certain State school employees
28 Application of this Part
(1)
This Part applies to—
(a)
a person who is—
(i)
employed by the board of a State school; and
(ii)
paid by a payroll service established under section 578 of the Education and Training Act 2020 (see clause 1 of this schedule); and
(b)
a person who is the employer of a person described in paragraph (a).
(2)
In this clause, board and State school have the meanings set out in section 10(1) of the Education and Training Act 2020.
29 Transitional provisions
(1)
On and from a date or dates set by Order in Council made under section 4(1)(b),—
(a)
clauses 5, 6, and 10 to 26 of this schedule apply to a person described in clause 28(1); and
(2)
However, for the purpose of applying clauses 5, 6, and 10 to 26 to a person described in clause 28(1), the commencement date is the date or dates set by Order in Council made under section 4(1)(b) if the Order in Council relates to that person.
Schedule 2 Consequential amendments
Part 1Amendments to Acts
Accident Compensation Act 2001 (2001 No 49)
Before section 286(5)(b), insert:
(aa)
Employment Leave Act 2026:
Repeal section 286(5)(f).
In section 306(1), replace “subpart 4 of Part 2 of the Holidays Act 2003”
with “subpart 4 of Part 2 of the Employment Leave Act 2026”
.
Anzac Day Act 1966 (1966 No 44)
In the heading to section 5A, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 5A, replace—
(a)
“section 45A of the Holidays Act 2003”
with “section 60 of the Employment Leave Act 2026”
; and
(b)
“Part 2, subpart 3 of that Act”
with “subpart 2 of Part 2 of that Act”
.
Companies Act 1993 (1993 No 105)
In Schedule 7, clause 1(2)(b), replace “any holiday pay”
with “any employment leave pay”
.
In Schedule 7, after clause 1(2)(b), insert:
(ba)
subject to clause 3(1), any leave compensation payment payable under the Employment Leave Act 2026 to an employee before, or because of, the commencement of the liquidation:
In Schedule 7, replace clause 3(4)(a) with:
(a)
remuneration in respect of a period of employment leave under the Employment Leave Act 2026 (including annual leave, alternative leave, sick leave, bereavement leave, and family violence leave), a public holiday, or a period of absence from work for other good cause is to be treated as wages in respect of services rendered to the company during that period:
(aa)
remuneration in respect of any leave compensation payment payable to a person under subpart 8 of Part 2 of the Employment Leave Act 2026 is to be treated as wages in respect of services rendered to the company during that period:
In Schedule 7, replace clause 3(4)(c) with:
(c)
employment leave pay, in relation to a person, means—
(i)
all sums payable for annual leave or alternative leave to that person by the company under section 123 of the Employment Leave Act 2026; and
(ii)
all sums that by or under any other enactment or any award, agreement, or contract of service are payable to that person by the company as annual leave or alternative leave:
Credit Contracts and Consumer Finance Act 2003 (2003 No 52)
In section 5, definition of public holiday, replace “section 44(1) of the Holidays Act 2003”
with “section 52(1) of the Employment Leave Act 2026”
.
Crimes Act 1961 (1961 No 43)
In section 220AA(1)(b)(ii), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Education and Training Act 2020 (2020 No 38)
In Schedule 1, clause 119(4)(a), after “Holidays Act 2003”
, insert “, the Employment Leave Act 2026,”
.
In Schedule 1, replace clause 122(1) and (2) with:
(1)
This clause applies in relation to any of the following taken by a transferred employee before the conversion date:
(a)
a holiday, sick leave, bereavement leave, or family violence leave provided under the Holidays Act 2003:
(b)
annual leave, a public holiday, alternative leave, sick leave, bereavement leave, or family violence leave provided under the Employment Leave Act 2026.
(2)
On and after the conversion date, any liabilities of the board of the converted school for the following vest in the Minister on behalf of the Crown:
(a)
holiday pay or leave pay in relation to the holidays and leave referred to in subclause (1)(a):
(b)
in relation to any leave or public holiday referred to in subclause (1)(b),—
(i)
any leave payment; or
(ii)
any payment for working on a public holiday.
Employment Relations Act 2000 (2000 No 24)
In section 5, definition of employment standards,—
(a)
paragraph (c), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
; and
(b)
paragraph (d), replace “sections 81 and 82 of the Holidays Act 2003”
with “sections 127 to 130 of the Employment Leave Act 2026”
.
In section 5, definition of minimum entitlement provisions, paragraph (a), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 66(3)(c), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 69J(2)(a),—
(a)
replace “Holidays Act 2003”
with “Employment Leave Act 2026”
; and
(b)
replace “holidays”
with “leave”
in each place.
Replace section 69J(2)(a)(iii)(A) with:
(A)
any sick leave not taken before the date of transfer; and
In section 69J(2)(a)(iii)(C), replace “section 61”
with “section 67”
.
In section 69LA(3)(a), replace “holidays”
with “leave”
in each place.
In the heading to section 142K, replace “section 83 of Holidays Act 2003”
with “section 131 of Employment Leave Act 2026”
.
In section 142K, replace “section 83 of the Holidays Act 2003”
with “section 131 of the Employment Leave Act 2026”
.
In section 142ZB(a), replace “section 77A of the Holidays Act 2003”
with “section 139 of the Employment Leave Act 2026”
.
In section 142ZB(b), replace “section 76 of the Holidays Act 2003”
with “section 135 of the Employment Leave Act 2026”
.
In section 148A(3), delete “or holiday pay”
.
In section 148A(3), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 161(1)(m)(iii), replace “section 76 of the Holidays Act 2003”
with “section 135 of the Employment Leave Act 2026”
.
In section 223(1)(c), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 224(1)(a), delete “or holiday pay”
.
In section 224(1)(a), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 224(1)(c), delete “or holiday pay”
.
In section 224(1)(d), delete “or holiday pay”
.
In section 224(4), delete “or holiday pay”
.
In section 225(4)(b), delete “or holiday pay”
.
In section 226(1) and (2), delete “or holiday pay”
.
In the cross-heading above section 228, delete “or holiday pay”
.
In section 228(1), delete “or holiday pay”
.
In section 228(1), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 228(2), delete “or holiday pay”
.
After section 236(4)(ba), insert:
(bb)
the Employment Leave Act 2026:
Repeal section 236(4)(d).
Immigration Act 2009 (2009 No 51)
In section 286(3), definition of out of hours, paragraph (c), replace “section 44(1) of the Holidays Act 2003”
with “section 52(1) of the Employment Leave Act 2026”
.
After section 294AAA(b)(i), insert:
(ia)
the Employment Leave Act 2026:
Repeal section 294AAA(b)(iv).
In section 351(1)(a)(i) and (2)(a), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Income Tax Act 2007 (2007 No 97)
In section RD 7(3), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
in each place.
In section RD 13(1)(b), replace “an amount of holiday pay”
with “a leave payment for annual leave under the Employment Leave Act 2026”
.
In section RD 13(1)(b)(i), replace “holiday”
with “annual leave”
.
Insolvency Act 2006 (2006 No 55)
In section 274(2)(b), replace “any holiday pay”
with “any employment leave pay”
.
After section 274(2)(b), insert:
(ba)
subject to section 276(1), any leave compensation payment payable under the Employment Leave Act 2026 to an employee before, or because of, the commencement of the adjudication:
Replace section 276(4)(a) with:
(a)
remuneration in respect of a period of employment leave under the Employment Leave Act 2026 (including annual leave, alternative leave, sick leave, bereavement leave, and family violence leave), a public holiday, or a period of absence from work for other good cause is to be treated as wages in respect of services rendered to the bankrupt during that period:
(aa)
remuneration in respect of any leave compensation payment payable to a person under subpart 8 of Part 2 of the Employment Leave Act 2026 is to be treated as wages in respect of services rendered to the bankrupt during that period:
Replace section 276(4)(c) with:
(c)
employment leave pay, in relation to a person, means—
(i)
all sums payable for annual leave or alternative leave to that person by the bankrupt under section 123 of the Employment Leave Act 2026; and
(ii)
all sums that by or under any other enactment or any award, agreement, or contract of service are payable to that person by the bankrupt as annual leave or alternative leave:
Local Government Act 2002 (2002 No 84)
In Schedule 10, replace clause 33(2)(b) with:
(b)
any annual leave or alternative leave payable, including a payment in accordance with section 123 of the Employment Leave Act 2026; or
(ba)
any leave compensation payment payable under subpart 8 of Part 2 of the Employment Leave Act 2026; or
Parliament Act 2025 (2025 No 62)
In Schedule 5, replace clause 15(1)(a) with:
(a)
entitlements under the following provisions in Part 2 of the Employment Leave Act 2026:
(i)
subpart 1 (annual leave); and
(ii)
subpart 2 (public holidays); and
(iii)
subpart 3 (alternative leave for working public holiday); and
(iv)
subpart 4 (sick leave); and
(v)
subpart 5 (bereavement leave); and
(vi)
subpart 6 (family violence leave); and
In Schedule 5, clause 15(2), replace “annual holidays”
with “annual leave”
in each place.
In Schedule 5, clause 15(2), replace “alternative holidays”
with “alternative leave”
in each place.
In Schedule 5, clause 15(2)(c)(i), replace “section 66 of the Holidays Act 2003”
with “section 75 of the Employment Leave Act 2026”
.
In Schedule 5, clause 15(2)(c)(iii), replace “section 61 of that Act”
with “section 67 of that Act”
.
In Schedule 5, clause 15(2)(c)(iv), replace “holidays”
with “leave”
.
In Schedule 5, clause 15(2)(c)(iv), replace “section 44A or 44B of that Act”
with “section 56 or 57 of that Act”
.
Public Service Act 2020 (2020 No 40)
Replace section 91(1)(a) with:
(a)
entitlements under the following provisions in Part 2 of the Employment Leave Act 2026:
(i)
subpart 1 (annual leave); and
(ii)
subpart 2 (public holidays); and
(iii)
subpart 3 (alternative leave for working public holiday); and
(iv)
subpart 4 (sick leave); and
(v)
subpart 5 (bereavement leave); and
(vi)
subpart 6 (family violence leave); and
In section 91(2), replace “annual holidays”
with “annual leave”
in each place.
In section 91(2)(c)(i), replace “section 66 of the Holidays Act 2003”
with “section 75 of the Employment Leave Act 2026”
.
In section 91(2)(c)(iii), replace “section 61 of that Act”
with “section 67 of that Act”
.
(a)
replace “holidays”
with “leave”
; and
(b)
replace “section 44A or 44B of that Act”
with “section 56 or 57 of that Act”
.
In section 92(1)(b), replace “holiday pay or leave pay”
with “pay for the entitlements referred to in section 90(1)(a)”
.
In the heading to section 93, replace “annual holidays”
with “annual leave”
.
In section 93(2), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 93(2), replace “annual holiday”
with “annual leave”
.
In section 93(3), replace the definition of annual holiday with:
In section 94(1)(b), replace “annual holidays”
with “annual leave”
.
Replace section 94(4) with:
Road User Charges Act 2012 (2012 No 1)
In section 5(1), definition of working day, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Screen Industry Workers Act 2022 (2022 No 52)
In section 32(6), replace “section 44(1) of the Holidays Act 2003”
with “section 52(1) of the Employment Leave Act 2026”
.
Support Workers (Pay Equity) Settlements Act 2017 (2017 No 24)
In section 5, definition of continuous employment, paragraph (a)(i), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Tax Administration Act 1994 (1994 No 166)
In section 3(1), definition of workplace legislation, after paragraph (a), insert:
(ab)
Employment Leave Act 2026:
In section 3(1), definition of workplace legislation, repeal paragraph (h).
Volunteers Employment Protection Act 1973 (1973 No 25)
In section 4(2), after “holidays”
, insert “or leave”
.
In the heading to section 8, replace “holidays”
with “leave, periodical holidays, or leave with pay”
.
In section 8(1), replace “annual or periodical holidays or leave with pay”
with “annual leave, periodical holidays, or leave with pay”
.
In section 8(1), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 8(2), replace “annual or periodical holidays or leave”
with “annual leave, periodical holidays, or leave with pay”
.
Waitangi Day Act 1976 (1976 No 33)
In the heading to section 6A, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
In section 6A,—
(a)
replace “section 45A of the Holidays Act 2003”
with “section 60 of the Employment Leave Act 2026”
; and
(b)
replace “Part 2, subpart 3 of that Act”
with “subpart 2 of Part 2 of that Act”
.
Part 2Amendments to secondary legislation
Animal Products (Dairy Industry Fees, Charges, and Levies) Regulations 2015 (LI 2015/95)
In the Schedule, Part 7, clause 3, definition of public holiday, replace “section 44 of the Holidays Act 2003”
with “section 5(1) of the Employment Leave Act 2026”
.
Animal Products (Fees, Charges, and Levies) Regulations 2007 (SR 2007/130)
In Schedule 1, Part 7, clause 3, definition of public holiday, replace “section 44 of the Holidays Act 2003”
with “section 5(1) of the Employment Leave Act 2026”
.
In Schedule 1, Part 8, clause 3, definition of public holiday, replace “section 44 of the Holidays Act 2003”
with “section 5(1) of the Employment Leave Act 2026”
.
Animal Welfare (Cost Recovery) Regulations 2015 (LI 2015/89)
In regulation 3, definition of public holiday, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Biosecurity (Costs) Regulations 2010 (SR 2010/135)
In regulation 3(1), replace the definition of public holiday with:
public holiday has the meaning set out in section 5(1) of the Employment Leave Act 2026
Court of Appeal (Civil) Rules 2005 (SR 2005/69)
In rule 4A(3), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
District Court Rules 2014 (LI 2014/179)
In rule 2.1(2), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Employment Relations (Prescribed Matters) Regulations 2000 (SR 2000/185)
In the Schedule, form 4, paragraph 2, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
in each place.
In the Schedule, form 4, paragraph 3, replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
High Court Rules 2016 (LI 2016/225)
In rule 3.2(2), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Industrial and Provident Societies Regulations 1952 (SR 1952/221)
Replace regulation 5A(2)(a) with:
(a)
has the meaning set out in section 5(1) of the Employment Leave Act 2026; and
Land Transport (Requirements for Storage and Towage of Impounded Vehicles) Regulations 1999 (SR 1999/84)
In regulation 2, replace the definition of public holiday with:
public holiday has the meaning set out in section 5(1) of the Employment Leave Act 2026
Land Transport (Storage and Towage Fees for Impounded Vehicles) Regulations 1999 (SR 1999/85)
In regulation 2, replace the definition of public holiday with:
public holiday has the meaning set out in section 5(1) of the Employment Leave Act 2026
Land Transport (Towage Fees) Notice 2024 (SL 2024/180)
In clause 3, replace the definition of public holiday with:
public holiday has the meaning set out in section 5(1) of the Employment Leave Act 2026
Māori Land Court Rules 2011 (SR 2011/374)
In rule 3.2A(2), replace “Holidays Act 2003”
with “Employment Leave Act 2026”
.
Schedule 3 Remediation process
Part 1 Preliminary provisions
1 Application of this schedule
(1)
This schedule applies to an employer who elects to follow the remediation process to resolve any liability of the employer under the Holidays Act to their employees.
(2)
An employer is not required to gain any employee’s consent to the employer following the remediation process.
2 Interpretation in this schedule
In this schedule,—
commencement date means the date on which this schedule comes into force
current employee, in relation to an employer, means a person who—
(a)
was employed by the employer at any time in the 4 years before the date of Royal assent to this Act; and
(b)
is employed by the employer on the date on which the employer elects to follow the remediation process
Holidays Act means the Holidays Act 2003
previous employee, in relation to an employer, means a person who—
(a)
was employed by the employer at any time in the period—
(i)
starting on the date that is 4 years before the date of Royal assent to this Act; and
(ii)
ending on the day before the second anniversary of Royal assent to this Act; but
(b)
is not employed by the employer on the date on which the employer elects to follow the remediation process
remediation process and process have the meaning set out in section 151
remediation regulations means regulations made under section 153.
Part 2 Remediation process requirements
3 Employer must notify employees that employer is following remediation process
(1)
An employer who elects to follow the remediation process must—
(a)
do so by notifying all the employer’s current employees, in writing, that the employer elects to follow the process; and
(b)
no later than 6 months after electing to follow the process, use all reasonable efforts to notify previous employees that the employer elects to follow the process.
(2)
An employer uses all reasonable efforts to notify previous employees if the employer—
(a)
attempts to contact each previous employee by using all of the employee’s last known contact details (for example, the phone numbers and email addresses last known to the employer); and
(b)
publishes a copy of a notice in or on 2 or more of the following:
(i)
a publicly accessible internet site that is maintained by, or on behalf of, the employer:
(ii)
a publicly accessible social media site that is run by, or on behalf of, the employer:
(iii)
1 or more newspapers circulating in the area in which the employer operates.
(3)
The notice provided to previous employees under subclause (1)(b) must also—
(a)
state that,—
(i)
if the previous employee wants to receive compensation, they must notify the employer of that fact; and
(ii)
if the previous employee does not contact the employer within 2 years after the date of the notice,—
(A)
the employee will not receive any compensation under the remediation process; and
(B)
clause 8 will apply; and
(b)
state how to contact the employer for the purposes of notifying the employer under paragraph (a)(i); and
(c)
require the previous employee, if they notify the employer under paragraph (a)(i), to provide—
(i)
their contact details to the employer and any updated contact details; and
(ii)
their bank account details (for the purpose of the employer paying the employee’s compensation) and any updated bank account details.
(4)
However, if a previous employee notifies the employer, within 2 years of the date of the notice under subclause (1)(b), that they want to receive compensation under the remediation process,—
(a)
the employer must be treated as having complied with subclause (2)(a) in relation to the employee; and
(b)
the employer is not required to use any further effort to notify the employee.
4 Date on which employer makes election
For the purposes of this schedule, an employer must be treated as having elected to follow the remediation process on the date on which the employer notifies their current employees under clause 3(1)(a).
5 Process ceases if employer does not complete remediation process
An employer who elects to follow the remediation process must be treated as having ceased following the process without having completed the process,—
(a)
in relation to all current employees, if the employer notifies the employer’s current employees, in writing, that the employer elects to cease following the process; or
(b)
in relation to all previous employees, if the employer uses all reasonable efforts (as defined in clause 3(2)) to notify previous employees, in writing, that the employer elects to cease following the process; or
(c)
in relation to an individual current employee or previous employee, if the period permitted in clause 7 for paying compensation under the process ends without the employer paying the compensation to the employee.
Payment of compensation
6 Employer must notify employees of compensation
(1)
This clause applies to an employer who—
(a)
elects to follow the remediation process; and
(b)
determines under the remediation regulations that the employer must pay compensation to a current employee or a previous employee.
(2)
The employer must—
(a)
notify all current employees, in writing, that the employer has completed the remediation process; and
(b)
ensure that the notification specifies the following information:
(i)
the outcome of completing the remediation process:
(ii)
the method by which the employer will pay the compensation (if any) to the employee:
(iii)
the date by which the employer will pay the compensation to the employee:
(iv)
the amount of the compensation that the employer will pay the employee:
(v)
any other information that the remediation regulations require to be included in the notice.
(3)
The employer must—
(a)
notify each previous employee (if the employee has notified the employer that they want to receive compensation), in writing if practicable, that the employer has completed the remediation process; and
(b)
ensure that the notification specifies the information listed in subclause (2)(b).
(4)
However,—
(a)
an employer may include some or all of the information required under subclause (3)(b) in the notice that the employer provides under clause 3; and
(b)
if the employer has provided some or all of the information in the notice under clause 3, the employer must notify each previous employee, in writing if practicable, of—
(i)
any information required under subclause (3)(b) that the employer did not include in the notice provided under clause 3; and
(ii)
any changes to the information required under subclause (3)(b) that the employer provided in the notice under clause 3.
7 Payment of compensation to current and previous employees
(1)
An employer who elects to follow the remediation process must pay any compensation payable under the process to—
(a)
the employer’s current employees; and
(b)
any of the employer’s previous employees who have notified the employer that they wish to receive compensation.
(2)
The employer must, in accordance with the remediation regulations, determine the amount of compensation payable to each employee.
(3)
The employer must pay the compensation,—
(a)
in relation to current employees, no later than the second anniversary of the date on which this clause comes into force; or
(b)
in relation to previous employees, no later than the date that is the later of—
(i)
the second anniversary of the date on which this clause comes into force; and
(ii)
2 months after the date on which the employee provides their contact details and bank account details to the employer.
(4)
Despite subclause (3)(a), if the employer notifies, in accordance with clause 6, all the employer’s current employees by the second anniversary of the date on which this clause comes into force,—
(a)
subclause (3)(a) does not apply; and
(b)
the employer must pay the compensation by the date that is 2 months after the second anniversary of the date on which this clause comes into force.
(5)
An employer who does not pay the compensation by the deadline specified in subclause (3) or (4) (as applicable) must be treated as having not completed the remediation process.
(6)
However, subclause (5) does not apply if the failure to pay the compensation results from an administrative error (see clause 13).
Part 3 Consequences of remediation process
8 Employer’s obligations under Holidays Act suspended
(1)
On and from the date on which an employer elects to follow the remediation process,—
(a)
no person may commence any proceedings, whether under the Holidays Act or any other legislation, in relation to the employer’s obligations under the Holidays Act; and
(b)
any liabilities of the employer, other than under the remediation process, in relation to the employer’s obligations under the Holidays Act are suspended; and
(c)
the limitation periods specified in section 76(5) and (5A) of the Holidays Act are suspended; and
(d)
any proceedings, whether under the Holidays Act or any other legislation, in relation to the employer’s obligations under the Holidays Act that were commenced before the employer elected to follow the process are suspended.
(2)
However, proceedings are not suspended under subclause (1)(d) if,—
(a)
in relation to the proceedings, the Authority has—
(i)
required the parties or any other person to attend an investigation meeting under section 160(1)(b) of the Employment Relations Act 2000; or
(ii)
decided not to hold an investigation meeting and has received the last evidence or information from the parties or any other person (see section 174D(2) of that Act); or
(iii)
referred a question of law to the court and delayed an investigation until it receives the court’s opinion (see section 177(1) of that Act); or
(iv)
ordered the removal of the proceedings, or any part of the proceedings, to the court under section 178 or 178AA of that Act; or
(b)
the proceedings are before the court and—
(i)
the proceedings are a challenge to a determination of the Authority under section 179 of the Employment Relations Act 2000; or
(ii)
the proceedings have been referred by, or have been removed from, the Authority; or
(iii)
on or before the date on which the employer elects to follow the process, the court has held a hearing or has received all information it requires to make a determination on the papers; or
(c)
the proceedings are an appeal against or a challenge to a determination of the Authority or an appeal against a judgment of the court in relation to the Holidays Act (for example, under section 179 of the Employment Relations Act 2000), whether the appeal or challenge commenced before, on, or after the date on which the employer elected to follow the process; or
(d)
they relate to the enforcement (for example, under section 76B of the Holidays Act) of a penalty relating to compliance with the Holidays Act if the penalty was ordered before the date on which the employer elected to follow the process; or
(e)
they relate to an improvement notice, an enforceable undertaking, a demand notice, or other exercise of a Labour Inspector’s powers in relation to the Holidays Act or the Employment Relations Act 2000.
(3)
Subclause (1) ceases to apply in relation to a previous employee if—
(a)
the employer does not use all reasonable efforts to contact previous employees under clause 3; or
(b)
the employer—
(i)
fails to pay the previous employee’s compensation within the specified time frame; or
(ii)
ceases to follow the remediation process without having completed the process.
(4)
However,—
(a)
if a person has commenced proceedings against the employer in relation to the employer’s obligations under the Holidays Act and any other legislation, the proceedings in relation to the other legislation are not suspended by this clause; and
(b)
the prohibition in subclause (1)(a) against commencing proceedings applies—
(i)
to current employees, only if the employer correctly followed the remediation process; and
(ii)
to previous employees, only if the employer correctly followed the remediation process (including using all reasonable efforts to contact previous employees under clause 3), whether or not the previous employee responded to the employer within the specified time frame.
(5)
Subclause (1) is subject to clause 10.
(6)
Nothing in this clause prohibits an employee from seeking to recover costs and expenses relating to any proceedings, whether under the Holidays Act or any other legislation, in relation to the employer’s obligations under the Holidays Act.
9 Consequences of employer completing process
(1)
This clause applies to a current employee or a previous employee if—
(a)
the employee’s employer—
(i)
elects to follow the remediation process; and
(ii)
completes the process in accordance with this schedule and the remediation regulations; and
(b)
in accordance with the process,—
(i)
the employee’s employer pays any compensation payable to each employee who is entitled to receive compensation; or
(ii)
if the employee is a previous employee, the employee fails to notify the employer within the 2-year period in clause 3(4) that the employee wants to receive any compensation payable under the process.
(2)
When this clause applies, the prohibition and suspensions in clause 8 become permanent in relation to the employee.
10 Consequences of process ending before completed: limitation periods
(1)
This clause applies if—
(a)
an employer elects to follow the remediation process; but
(b)
the employer ceases following the process without having completed the process.
(2)
On the date on which the employer ceases following the process, clause 8 ceases to apply.
(3)
Subclause (4) applies in relation to a limitation period—
(a)
specified in section 76(5) or (5A) of the Holidays Act:
(b)
specified in section 142, 135, or 142I of the Employment Relations Act 2000.
(4)
If an employer ceases following the remediation process before completing the process, a limitation period in relation to a matter that is prohibited or suspended under clause 8 is extended by a period equivalent to the period—
(a)
starting on the date on which the employer elected to follow the remediation process; and
(b)
ending on the date on which the employer ceased to follow the process.
11 Consequences if employer follows process incorrectly: current employees
(1)
Despite clause 8, this clause applies if—
(a)
an employer elects to follow the remediation process; and
(b)
the employer fails, in relation to a current employee, to follow the process correctly; and
(c)
as a result of that failure, the employee receives less compensation than they would have received if the employer had followed the process correctly.
(2)
The current employee is entitled to receive the following additional amounts:
(a)
the difference between—
(i)
the amount of compensation (if any) that the employee has received; and
(ii)
the amount of compensation that the employee would have received if the employer had correctly followed the process; and
(b)
interest, calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016, on the amount in paragraph (a).
(3)
However, subclause (2) does not apply if the employer’s only failure is a failure to pay the compensation within the period specified in clause 7(3) or (4) (in which case, the employer must be treated as not having completed the remediation process).
12 Consequences if employer follows process incorrectly: previous employees
(1)
Despite clause 8, this clause applies if—
(a)
an employer elects to follow the remediation process; and
(b)
a previous employee has notified the employer that they want to receive compensation; and
(c)
the employer fails, in relation to the employee, to follow the remediation process correctly; and
(d)
as a result of that failure, the employee receives less compensation than they would have received if the employer had followed the process correctly.
(2)
The previous employee is entitled to receive the following additional amounts:
(a)
the difference between—
(i)
the amount of compensation (if any) that the employee has received; and
(ii)
the amount of compensation that the employee would have received if the employer had correctly followed the process; and
(b)
interest, calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016, on the amount in paragraph (a).
(3)
However, subclause (2) does not apply if the employer’s only failure is a failure to pay the compensation within the period specified in clause 7(3) or (4) (in which case, the employer must be treated as not having completed the remediation process).
13 Consequences if employer makes administrative error
(1)
Despite anything to the contrary in this schedule, an employer who fails to complete the remediation process as the result of an administrative error must correct the error and complete the process within a reasonable period after becoming aware of having made the error.
(2)
However, if the employer fails to correct the error and complete the process within a reasonable period, an employee who has received less compensation than they would have received if the employer had not made the error and had completed the process, is entitled to receive the following additional amounts:
(a)
the difference between—
(i)
the amount of compensation (if any) that the employee has received; and
(ii)
the amount of compensation that the employee would have received if the employer had not made the error; and
(b)
interest, calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016, on the amount in paragraph (a).
(3)
An administrative error includes, without limitation, an employee providing incorrect information or the employer making an error in processing a payment of compensation.
14 Arrears for compensation
Any amount owing under this schedule may be recovered under section 131 of the Employment Relations Act 2000 as if it were wages or other money payable under an employment agreement.
Retention of information
15 Retention of information
(1)
An employer who elects to follow the remediation process must keep all information for the period specified in subclause (2) or (3) (as applicable).
(2)
An employer who elects to follow the remediation process and who completes the process must keep all information for a period of 6 years after the date of the information.
(3)
An employer who elects to follow the remediation process but who ceases to follow the process (see clause 5) must keep all information for the total of—
(a)
6 years after the date of the information; and
(b)
the period—
(i)
starting on the date on which the employer elected to follow the remediation process; and
(ii)
ending on the date on which the employer ceased to follow the process.
(4)
For the purposes of this clause, information means—
(a)
all information relating to the process; and
(b)
all information in the employer’s holidays and leave record kept under section 81 of the Holidays Act; and
(c)
all information in the employer’s wages and time record kept under section 130 of the Employment Relations Act 2000.
Schedule 4 New Part 6 of Schedule 1AA inserted into Parental Leave and Employment Protection Act 1987
Part 6 Provision relating to amendments to this Act made by Employment Leave Act 2026
6 Application of section 183 of Employment Leave Act 2026
The amendments made by section 183 of the Employment Leave Act 2026 apply only to an application received on or after 1 July 2027.
Legislative history
9 March 2026 |
Introduction (Bill 259–1) |
|
12 March 2026 |
First reading and referral to Education and Workforce Committee |
|
13 July 2026 |
Reported from Education and Workforce Committee |
|
(Bill 259–2) |
||
21 July 2026 |
Second reading |
|
28 July 2026 |
Committee of the whole House |
|
29 July 2026 |
Third reading |
|
6 August 2026 |
Royal assent |
This Act is administered by the Ministry of Business, Innovation, and Employment.
Versions
Employment Leave Act 2026
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