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Digest No. 1615

Holidays (Transfer of Public Holidays) Amendment Bill 2008

Date of Introduction: 09 April 2008
Portfolio: Labour
Select Committee: As at 12 May, 1st Reading not held.
Published: 12 May 2008Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this Bill is to cover the situation where an employee's work shift crosses midnight by ensuring that when a shift spans two days, at least one of which is a public holiday, an agreement can be reached for the public holiday to be transferred to cover one whole shift.

Background

"This legislation is needed following the recent Supreme Court decision New Zealand Airline Pilots' Association Industrial Union of Workers Incorporated v Air New Zealand Limited (14 November 2007, SC 91/2006), which found that an employer and an employee cannot agree to transfer a public holiday from a day listed in the Holidays Act 2003 to another day. The original intention of the Holidays Act 2003 was to give employers and employees the flexibility to transfer a public holiday, from a day listed in the Act, for reasons of cultural or personal significance or for reasons of convenience.

"The Bill amends the Holidays Act 2003 to allow for a public holiday to be transferred where certain circumstances are met. The proposed amendment will ensure that where an employee’s shift spans 2 calendar days, and 1 of those days is a public holiday, an employer and employee can enter into a genuine agreement to transfer the public holiday to a 24-hour period that begins or ends on the public holiday. Such a transfer cannot reduce an employee’s statutory right to public holidays" [1]   .

Main Provisions

Transfer of public holiday

The Bill provides that where an employee is to start work on a day and finish work on the following day and one or both of those days are specified are public holidays, that employee and his or her employer may agree that part of one or both days concerned is to be treated as not part of a public holiday and that:

  • if the agreement relates to only one public holiday a period of 24 hours is to be treated as a public holiday if the period is to start or finish during the public holiday and includes the period from when the employee is to start work to when the employee is to finish work;

  • if the agreement relates to two public holidays, two separate periods of 24 hours are to be treated as public holidays if each period is to start or finish during the public holidays concerned and includes the period from when the employee is to start work to when the employee is to finish work (Part 2, Clause 8 of the Bill, inserting New Clause 44A into the Act; Clause 5, amending Section 5(1) of the Act, new definition of "public holiday").

Example

The Bill sets out an example as follows:

" An employee is to work from 10 pm on 24 April to 6 am on Anzac Day and from 10 pm on Anzac Day to 6 am on 26 April. The employer and employee can agree to treat 10 pm to midnight on Anzac Day as not part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. Just when the 24-hour period starts before or finishes after a work period is a matter for the parties to agree on. For instance, they would agree that it runs from midday on 24 April to midday on Anzac Day" (Example: after Clause 8 of the Bill).

Copyright: © NZ Parliamentary Library, 2008
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  1. Holidays (Transfer of Public Holidays) Amendment Bill, 2008 No 207-1, Explanatory note, General policy statement, p. 1.   [back]