Employment – Holidays Act 2003

Employees have certain rights to holidays and leave. Most of these entitlements are covered by the Holidays Act 2003. The Act also tells you how and when employees must be paid when they take their leave. It’s important to understand your responsibilities – and your employees’ rights – under the Act.

Annual leave

Employees are entitled to four weeks of paid annual leave after each year of service.

Employees have the right to take at least two weeks of their annual leave in one continuous period, within a year of the date on which they qualify for annual leave.

If employees leave before they become entitled to annual leave (ie within 12 months of being employed by you), you have to give them 8 percent holiday pay in their final pay (unless they have taken annual leave in advance or have already been paid their holiday pay).

Employees may “cash up” up to one week of their annual leave entitlement per year.

The employee must make the request in writing and you must consider it within a reasonable time and let the employee know the answer in writing. If the request is declined, you do not have to give a reason.

If you agree to the employee’s request, the employee must be paid as soon as practicable.

When should annual leave be taken?

Employees remain entitled to annual leave until they have taken it.

It’s up to you and the employee to agree on when the annual leave will be taken.

You must not unreasonably withhold consent to a request to take annual leave.

If you’re unable to agree on which days the employee will take leave, you can make the final decision, so long as you give them at least 14 days’ notice before the day on which their leave will start.

If you have an annual close down, you can require your employees to use annual leave during that period.

When do I pay holiday pay?

Employees are entitled to be paid holiday pay before commencing a period of annual leave, unless:
You both agree that the employee will be paid in the pay that relates to the period during which the leave is taken; or
The employee’s employment has come to an end.

For employees that are paid weekly, this usually poses no problems. However, the same rule applies to employees who have their wages direct-credited each month. All employees are entitled to be paid before taking their annual leave – despite the difficulties this may cause with the direct credit system.

Sick leave

Employees who have been working for you for six months or more are entitled to five days of paid sick leave a year. Unused sick days can be accumulated, up to a maximum of 20 days’ entitlement in one year.

Sick leave can be taken when the employee is ill or injured. It can also be taken if the employee’s spouse, or someone who depends on the employee for care, is sick or injured.

You can require an employee to provide proof of their sickness and injury (eg a doctor’s note). However, if you want them to do so for leave that lasts less than three days, you must tell them as soon as possible and pay for their costs of getting the proof (eg doctor’s fee).

Bereavement leave

Employees who have worked for you for at least six months are entitled to take:
Three days of paid bereavement leave on the death of their spouse/partner, parent, child, sibling, grandparent, grandchild, or spouse’s/partner’s parent; and
One day of paid bereavement leaves on the death of anyone else who you accept, in good faith, the employee who had a close association with.

Public holidays

All employees, regardless of how long they’ve worked for you, have a right to 11 public holidays a year. They must be paid their relevant daily pay, or their average daily pay, for the public holiday (unless they work, in which case see below).

The 11 public holidays are listed in the Holidays Act 2003. You and the employee can agree that a public holiday will be observed on a date other than that specified under the Act. The date must be a normal working day for the employee. However, the aim of changing the date for observing a public holiday must not be to reduce the employee’s entitlement to 11 public holidays a year. You can only require an employee to work on a public holiday if it’s on a day they would normally work and their employment agreement requires them to work on public holidays.

You can only require an employee to work on a public holiday if it’s on a day they would normally work and their employment agreement requires them to work on public holidays.

If your employees work on a public holiday, you must pay them at the rate of at least time and a half of their relevant daily pay. If the public holiday falls on a normal working day for them, you must also allow them to take an alternative holiday.

Holiday and leave record

You must make a holiday and leave a record, which may be included in your payroll software. This record must include the following for each employee:

• Employee’s name;
• Date on which they started working for you;
• Which days the employee works on;
• Their current entitlement to annual leave;
• The date on which the employee last became entitled to annual leave;
• How much sick leave they are currently entitled to;
• The dates on which they took annual, sick, or bereavement leave;
• How much they were paid for any annual, sick, or bereavement leave taken;
• The dates of, and payments for, any public holidays that they worked;
• The number of hours that they worked on a public holiday;
• The date that they became entitled to an alternative holiday (in lieu of working on a public holiday);
• The dates of, and payments for, any public holidays (or alternative holidays instead of working on a public holiday) when they didn’t work but we’re entitled to be paid;
• The cash value of any board or lodgings which form part of the employee’s “gross earnings”;
• Any payment made if they chose to be paid in exchange for an alternative holiday;
• The date on which they stopped working for the employer (if applicable); and
• How much holiday pay they were paid when they stopped working for you (if applicable).

Note: that the law can and does change quickly. The latest on holidays legislation can be found on www.ers.govt.NZ.