This Act may be cited as the Holidays Act 1981.

This Act shall come into force on the commencement of the Factories and Commercial Premises Act 1981.

In this Act, unless the context otherwise requires,—

For the purposes of the definition of the term “worker” in subsection (1) of this section, every person who is wholly or mainly engaged in procuring proposals or contracts of industrial life assurance or in collecting industrial life assurance premiums for any person, firm, company, society, association, or corporation carrying on industrial life assurance business and is remunerated wholly or partly by fees or commission shall be deemed to be a worker employed by that person, firm, company, society, association, or corporation, whether or not the relationship between them is that of master and servant.

For the purposes of this Act, the term “gross earnings” means,—

Notwithstanding subsection (1) of this section but subject to sections 18(7) and 21(3) of this Act, the term “gross earnings” does not include any sum (including a bonus, gratuity, or other lump sum special payment) that the employer is not bound by the terms of the employment to pay to the worker, nor, in the case of a worker who, during the period of employment, is unable to work because of sickness or injury, or is absent from work while on protected voluntary service or training (within the meaning of the Volunteers Employment Protection Act 1973), any sick pay or pay in respect of any such service or training received by the worker in respect of every complete week of inability to work or training.

For the purposes of this Act, the term “ordinary pay”, in relation to any worker, means the remuneration for the worker’s normal weekly number of hours of work calculated at the ordinary time rate of pay, and, where the worker is provided with board or lodging by his employer, includes the cash value of that board or lodging as determined under section 5 of this Act.

For the purposes of subsection (1) of this section,—

For the purposes of sections 3(1)(a) and 4(1) of this Act, the cash value of board or lodging provided for a worker—

Notwithstanding subsection (1) of this section, the value of any board or lodging or the amount of any payment in respect of board or lodging shall not be included in the remuneration of any worker in any case where the board or lodging is provided, or the payment is made, not as part of the worker’s ordinary pay, but because the work done by the worker is in such a locality as to necessitate his sleeping elsewhere than at his genuine place of residence, or because of any other special circumstances.

Notwithstanding anything to the contrary in this Act, to the extent that the Commissioner of Inland Revenue determines under section 73 of the Income Tax Act 1976 that any allowance constitutes a reimbursement of expenditure exclusively incurred by a worker in the production of his assessable income, that allowance shall not form part of the worker’s remuneration for the purposes of this Act.

Except with respect to—

sections 24 to 30 of this Act shall bind the Crown.

Where in this or any Act, award, or agreement provision is made for the granting of a holiday, or the observance of certain hours of labour, or the payment of certain rates of wages on the day of the anniversary of any province,—

For the purposes of this section, Northland (being that portion of the North Island north of the southern boundary for the time being of the County of Otamatea) shall be deemed to be a province and the 29th day of January in each year shall be deemed to be the anniversary day of that province.

For the purposes of this section, the Chatham Islands shall be deemed to be a province and the 30th day of November in each year shall be deemed to be the anniversary day of that province.

Where Christmas Day and New Year’s Day fall on Fridays the following rules shall apply with respect to the construction of the provisions of this or any Act, award, or agreement:

Where Christmas Day and New Year’s Day fall on Saturdays the following rules shall apply with respect to the construction of the provisions of this or any Act, award, or agreement:

Where Christmas Day and New Year’s Day fall on Sundays the following rules shall apply with respect to the construction of the provisions of this or any Act, award, or agreement:

Where in this or any Act, award, or agreement reference is made to Labour Day, that reference shall be deemed to be to the fourth Monday in October.

Except as otherwise provided in this Act, every worker shall at the end of each year of his employment by any one employer become entitled to an annual holiday of 3 weeks on holiday pay calculated in accordance with this Act.

Where a worker becomes entitled to an annual holiday, then, subject to section 14 of this Act, the employer shall allow to the worker at least 2 uninterrupted weeks of that holiday commencing within 6 months after but excluding the date on which he becomes so entitled, and shall allow to him any balance of that holiday commencing within 12 months after but excluding that date.

Except where any award or agreement applicable to the worker or the worker’s contract of service otherwise provides, the time at which any annual holiday to which the worker has become entitled may be taken shall be fixed by his employer after consultation with the worker, and, in fixing that time, work requirements and the opportunities for rest and recreation available to the worker shall be taken into account.

Subject to subsection (1) of this section, where the worker and his employer so agree, an annual holiday may be taken by the worker in more than one period.

Where a worker and his employer so agree, any annual holiday to which the worker may become entitled may be taken by the worker wholly or partly in advance.

Where the employment of a worker is terminated before he has taken the whole of any annual holiday to which he has become entitled, his employer shall be deemed to have allowed to the worker, from the date of the termination of the employment, the balance of the holiday not already taken, and shall pay forthwith to the worker, in addition to all other amounts due to him, holiday pay for that balance.

No period during which a worker is unable to work, because of sickness or injury, shall be counted as part of any annual holiday to which he is or may become entitled.

Where any special holiday for which a worker is entitled to payment under this or any Act, award, or agreement (or, as the case may be, for which he would have been so entitled to payment if his employment had not been terminated) occurs during any period of an annual holiday allowed or deemed to be allowed in accordance with this Act, the period of the annual holiday shall be deemed to be increased by one day in respect of that special holiday.

Where a worker does not take any part of his annual holiday until he has become entitled to it under section 11 of this Act, his holiday pay in respect of the whole of the holiday shall be calculated in accordance with this section.

In respect of each week of his annual holiday, the holiday pay of a worker shall be at the rate of his average weekly earnings during the year in respect of which he has become entitled to the holiday.

Where it is agreed under section 12(3) of this Act that a worker shall take his annual holiday in more than one period, his holiday pay shall be divided so that the amount to be paid to him in respect of each period is in the same proportion to the whole of the holiday pay as the period is to 3 weeks.

Notwithstanding subsections (2) and (3) of this section, the holiday pay of a worker in respect of any period of his annual holiday shall in any event be at a rate not less than the rate of his ordinary pay at the date when he begins to take that period of his holiday.

For the purpose of assessing a worker’s holiday pay pursuant to this section, the employer may fix a cut-off date other than the anniversary of the commencement of the worker’s employment.

Where, pursuant to an agreement made under section 12(4) of this Act, a worker takes any annual holiday wholly or partly in advance, his holiday pay in respect of the whole of the holiday shall be calculated in accordance with this section.

In respect of each period of his annual holiday that a worker takes in advance, his holiday pay shall be an amount equal to the same proportion of 6 percent of his gross earnings during the specified time as the period taken in advance is to 3 weeks.

Where a worker has not completed at least 3 weeks of employment from the beginning of the year in respect of which he will be entitled to an annual holiday, subsection (2) of this section shall not apply, but instead his holiday pay in respect of each period of his holiday that he takes in advance shall be an amount equal to 6 percent of the total ordinary pay earned by him during the specified time, less all amounts already paid to him under this subsection in respect of all other parts of that holiday taken during the specified time.

In subsections (2) and (3) of this section, the term “the specified time” means the time from the beginning of the year in respect of which the worker will become entitled to the annual holiday up to the date when he begins to take the period of the holiday referred to.

Where a worker who has taken his annual holiday wholly or partly in advance becomes entitled to that holiday under section 11 of this Act, his employer shall assess the total amount that would have been payable to the worker under section 16 of this Act in respect of that holiday if the worker had not taken any part of that holiday in advance, and shall pay to the worker the amount so assessed reduced by the amount of holiday pay paid in respect of so much of his annual holiday as has been taken in advance. That amount shall be paid, in the case of a worker who has taken the whole of his annual holiday in advance, at the end of his year of entitlement, and, in the case of any other worker, at the time specified in section 19 of this Act.

Notwithstanding any other provision in this section, the holiday pay of a worker (other than a worker to whom subsection (3) of this section applies) in respect of any period of his annual holiday shall in any event be at a rate not less than the rate of his ordinary pay at the date when he begins to take that period of his holiday.

Where it is customary for any employer to allow the whole or any part of any annual holiday to his workers or to any class of his workers during a period in each year when his premises are closed or the work of those workers is for any reason discontinued, and at the date of commencement of that period any such worker has not under section 11 of this Act become entitled to an annual holiday, the holiday pay of that worker in respect of that period shall, subject to any agreement made under section 12(4) of this Act, be calculated in accordance with this section.

In respect of the period of closure or discontinuance of work referred to in subsection (1) of this section, the holiday pay of the worker shall be an amount equal to 6 percent of his gross earnings during the time from the date of commencement of his employment up to the date when the premises are closed or the work is discontinued.

Notwithstanding subsection (2) of this section, the employer may deduct from the amount of holiday pay assessed under that subsection all amounts already paid to the worker in accordance with section 17 of this Act in respect of any annual holiday to which he has not become entitled under section 11 of this Act at the date when the premises are closed or the work is discontinued.

Subject to subsection (6) of this section, but notwithstanding any other provision in this Act, a worker who receives holiday pay calculated in accordance with this section shall not otherwise be entitled to any annual holiday in respect of the period of his employment up to the date of the closure or discontinuance of work, or to any remuneration in respect of the period of the closure or discontinuance of work.

For the purposes of this Act, where a worker receives holiday pay calculated in accordance with this section, the next year of his employment shall be deemed to commence on the date when the premises are closed or the work is discontinued.

Nothing in this section shall be deemed to deprive any worker of any right or benefit to which he is entitled under any other Act, award, or agreement.

Where during the employment of any worker to whom this section applies he is unable to work because of sickness or injury, then, for the purposes of this section the term “gross earnings”, in relation to that worker, includes in respect of each complete week of absence through that sickness or injury an amount equal to the amount of ordinary pay that he would have received had he not been absent, reduced by the amount of sick pay received by him in respect of that week or any part of that week.

For the purpose of assessing a worker’s holiday pay pursuant to this section, the employer may fix a cut-off date other than the anniversary of the commencement of the worker’s employment.

In the absence of any agreement by a worker to the contrary, his employer shall give to him not less than 7 days’ notice of the date on which the worker is to begin any annual holiday or any part of it, and shall before that date pay to the worker the amount of the holiday pay to which he is entitled under this Act for the period of the annual holiday or for the part of it, as the case may be.

Holiday pay under this Act shall be payable to a worker in addition to all other amounts due to him by his employer.

In this section, “annual holiday” includes any period referred to in section 18(1) of this Act when the premises are closed or the work is discontinued.

If the employment of any worker is terminated and the worker is again employed by the same employer at any time within one month after the date of the termination of the employment, the employment of the worker shall for the purposes of section 11 of this Act and for calculating holiday pay be deemed to have continued as if the termination had not occurred, unless an Inspector of Factories certifies in writing that he is satisfied that in terminating the employment the employer acted in good faith and not for the purpose of evading or attempting to evade any obligation imposed by this Act or any payment required to be made under it.

Any employer or worker affected by any determination of an Inspector of Factories under this section may, at any time within 14 days after the communication to him of the Inspector’s determination, appeal in the prescribed manner to the Arbitration Court, and the decision of the Court shall be final and binding on all parties.

This section applies with respect to every period of employment of a worker by any employer which is less than one year, computed from the date of the commencement of the employment or (where the worker has during the employment become entitled to any annual holiday or holidays) from the date on which he became entitled to that annual holiday or to the last annual holiday, as the case may be.

Except as otherwise provided in this Act, where the employment of a worker by an employer is terminated at the end of a period of employment to which this section applies, the employer shall forthwith pay to the worker, in addition to all other amounts due to him, an amount equal to 6 percent of his gross earnings during that period.

Where during the employment of any worker to whom subsection (2) of this section applies he is unable to work because of sickness or injury, then, for the purposes of that subsection the term “gross earnings”, in relation to that worker, includes in respect of each complete week of absence through that sickness or injury an amount equal to the amount of ordinary pay that he would have received had he not been absent, reduced by the amount of any sick pay received by him in respect of that week or any part of that week.

Where the employment of a worker is terminated at the end of a period of employment to which this section applies, being a period that is less than 3 weeks, subsection (2) of this section shall not apply but instead, except as otherwise provided in this Act, the employer shall forthwith pay to the worker, in addition to all other amounts due to him, an amount equal to 6 percent of the total ordinary pay for the time worked by him during that period.

The employer may deduct from any amount payable to a worker under subsection (2) or subsection (4) of this section, all amounts already paid to the worker in accordance with section 17 of this Act in respect of any annual holiday to which the worker has not become entitled at the date of termination of his employment.

All money payable by an employer to any worker under this Act shall be deemed to be salary or wages earned by the worker, and shall be subject accordingly to all deductions that the employer is required by any enactment to make from salaries or wages, whether in respect of income tax or otherwise.

The following provisions shall apply in every case where provision is made by or under any Act other than this Act or by any award or agreement for annual holidays or annual leave for any worker:

Workers employed under the terms of any order of the Waterfront Industry Tribunal appointed under the Waterfront Industry Act 1976 and workers employed on the waterfront as tally clerks and workers employed as shipwrights or carpenters in the preparation of ships for cargo or in the loading or unloading of cargo shall be allowed such holidays on such terms and conditions as may from time to time be approved by the Minister. Except as provided by any such terms and conditions, sections 11 to 19 and section 21 of this Act shall not apply to any such workers.

Subject to this Act, the occupier of a factory shall allow to every person employed in the factory a whole holiday on each of the following days in every year:

Notwithstanding subsection (1) of this section, the occupier of a factory may employ any worker on any such holiday except as otherwise expressly provided.

Where any person has been employed in any factory at any time during the fortnight ending on the day on which any of the whole holidays referred to in section 24(1) of this Act occurs, each employer who employs him in a factory during that fortnight shall, subject to subsection (2) of this section, pay him for the holiday, on or before the next regular pay day after the holiday, an amount equal to one-tenth of his wages for an ordinary working day multiplied by the number of ordinary working days on which he is employed during the fortnight by that employer.

Where on any ordinary working day during the fortnight ending as aforesaid any such person has not otherwise been employed in any employment in which he is entitled to payment for the holiday, the employer who last employed him in the factory during that fortnight shall be liable to pay him in respect of each day on which he was not otherwise employed as aforesaid an amount equal to one-tenth of his wages for an ordinary working day.

For the purposes of this section, a certificate in writing by any person that he has not for any period during the fortnight ending as aforesaid been employed on an ordinary working day in any employment for which he is entitled to payment for any whole holiday referred to in section 24(1) of this Act shall be prima facie evidence of that fact.

Notwithstanding the provisions of this section, no worker shall be entitled to receive payment under the foregoing provisions of this section for more than the equivalent of one ordinary day’s wages for any such whole holiday.

For the purposes of this section, the expression “ordinary working day” includes any such whole holiday if that holiday is granted on a day on which the person concerned would normally work.

The employment of a casual worker merely for the purpose of baking, or preparing for baking, any article of food required for sale for human consumption to meet a public demand resulting from the observance of any of the said whole holidays shall not for the purposes of the foregoing provisions of this section be deemed to be employment in a factory.

Subject to subsection (8) of this section, every person who is actually employed in any factory on any of the said whole holidays shall, in addition to the payment to which he is entitled under the foregoing provisions of this section, be paid therefor at not less than double the ordinary rate.

Where any worker employed in or about a dairy factory or a creamery in which not more than 2 workers are regularly employed is actually employed on any of the said whole holidays he may, instead of payment therefor in accordance with subsection (7) of this section, be allowed 2 whole holidays at such time or times as the occupier may determine, being not later in any case than one month after the close of the season in which the said whole holiday occurred.

This section applies to every person being a worker in a factory of the New Zealand Government Railways Department.

Notwithstanding section 24(1) of this Act, any person to whom this section applies may elect to receive no payment for a whole holiday allowed, but instead to have a day off duty on pay at some subsequent date to be agreed upon between that person and his employer.

Notwithstanding section 25(7) of this Act, any person to whom this section applies may elect to receive in respect of work done on a whole holiday payment at double the ordinary rate only and no payment at the ordinary rate, but instead to have a day off duty at the ordinary rate at some subsequent date to be agreed upon between that person and his employer.

Where any worker employed in a factory in which work is regularly performed on Sundays is actually employed on any Sunday, he shall, in addition to his ordinary rate of pay, be paid for the time worked on such Sunday at not less than the ordinary rate.

Except as provided in subsection (1) of this section, every person who is actually employed in any factory on any Sunday shall be paid for the time worked on such Sunday at not less than double the ordinary rate of pay.

For the purposes of sections 24 to 27 of this Act in their application to night workers in a newspaper factory—

In this section, the term “newspaper” means a paper containing public news, printed and published in New Zealand periodically or in parts or numbers, at intervals not exceeding 26 days between one publication and the next.

The Governor-General may from time to time, by Order in Council, modify with respect to any specified factory or specified factories, or with respect to any specified class or specified classes of factories, subject to such conditions or requirements as he thinks fit, all or any of the requirements of sections 24 to 28 of this Act.

Any Order in Council under this section may be at any time in like manner amended or revoked.

Every Order in Council under this section shall have effect according to its tenor.

Subject to subsection (2) of this section, the provisions of sections 24, 25, and 27 of this Act in relation to the employment of any person in an undertaking shall apply in respect of that person in the same manner and to the same extent as if that person were employed in a factory.

Nothing in sections 24, 25, and 27 of this Act shall apply to any person in respect of his employment in an undertaking if that person is subject to an award or an agreement relating to that employment, and that award or agreement confers all or any of the benefits referred to in those sections, or declares that all or any of the benefits referred to in those sections do not apply, or makes no provision for any such benefits.

Every employer shall at all times keep a record (called the holiday book) showing, in the case of each worker employed by him,—

The holiday book may be incorporated with any holiday book or wages book that the employer is required to keep under any enactment other than this Act.

The holiday book in use for the time being, and any such book used within the preceding 6 years, shall at all times be open to the inspection of an Inspector of Factories.

An Inspector of Factories may at any time require the employer to verify the entries in the holiday book by statutory declaration or in such other manner and form as he may direct.

Any Inspector of Factories may from time to time require any person to furnish, in a form to be approved by or acceptable to the Inspector, such information or particulars as he thinks necessary in order to ascertain whether the provisions of this Act are being or have been complied with.

Every Inspector exercising the powers conferred on him by this section shall, on demand, produce a warrant or other evidence of his appointment as an Inspector of Factories.

Except as otherwise expressly provided by this Act, no contract or agreement entered into before or after the commencement of this Act shall have any force or effect to deprive any worker of any right, power, privilege, or other benefit provided for by this Act.

Every person who after the commencement of this Act enters into or becomes a party to any contract or agreement purporting to have any such force or effect commits an offence against this Act.

Every person commits an offence against this Act who—

Every person who commits an offence against this Act shall be liable to a penalty not exceeding $500 and (if the offence is a continuing one) to a further penalty not exceeding $100 for every day during which the offence continues.

A penalty for an offence against this Act may be recovered by any Inspector of Factories in the same manner as a penalty for a breach of an award, and the provisions of the Industrial Relations Act 1973 shall, so far as they are applicable and with the necessary modifications, apply accordingly.

Without limiting the powers or remedies of any other person, it is hereby declared that—

The enactments specified in the Schedule to this Act are hereby consequentially repealed.

Section 308(7) of the Companies Act 1955 is hereby consequentially amended by omitting from paragraph (b) the words “the Annual Holidays Act 1944”, and substituting the words “sections 11 to 23 of the Holidays Act 1981”.

The Factories Act, 1946, Modification Order 1948 is hereby consequentially revoked.

The First Schedule to the Labour Department Act 1954 (as substituted by section 2(2) of the Labour Department Amendment Act 1979) is hereby amended—