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Holidays Amendment Bill (Consistent) [2004] NZBORARp 32 (27 August 2004)

Last Updated: 19 March 2021

Holidays Amendment Bill

27 August 2004

Attorney-General

Legal Advice
Consistency With The New Zealand Bill Of Rights Act 1990:
Holidays Amendment Bill

1. We have considered whether the Holidays Amendment Bill (the Bill) (PCO 5938/7) is consistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). A ‘near final’ copy of the Bill arrived late on Thursday 26 August 2004, and we understand that the Bill will be considered by Cabinet on Monday 30 August 2004.
2. The Bill aims to address the unintended consequences of the Holidays Act 2003. The Bill seeks to:
   • clarify an employee’s entitlement to be paid for working on a public holiday. Under the Bill an employee must be paid the greater of the portion of his or her: (a) relevant daily pay that relates to the time actually worked on the day less certain penal rates, plus half that amount again, or (b) relevant daily pay that relates to the time actually worked. The penal rates to be excluded under (a) are limited to those that are designed to compensate the employee for working on a particular day (for example, weekend rates);
   • provide that existing employment agreements must be amended by the specified date to include a provision relating to pay for work on public holidays, as outlined above;
   • provide a transitional provision so that where an existing collective employment agreement already incorporates time and a half or better rates for public holidays into a composite pay rate, the employer can continue to pay an employee their regular pay for working on a public holiday until the specified date.
   • provide that where an employee is sick or bereaved on a public holiday on which he or she was scheduled to work, the day should be treated as an unworked public holiday (rather than as sick or bereavement leave) and the employee is to be paid his or her relevant daily pay;
   • enable employers, in certain circumstances, to require an employee to produce proof of sickness or injury (eg a medical certificate) at any point after the employer has been notified of the employee’s intention to take the leave (currently employers can only require medical certificates where the sickness or injury lasts for 3 or more days).
3. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.
4. In accordance with your instructions we attach a copy of this opinion for referral to the Minister of Justice. A copy of the opinion is also attached for referral to the Minister of Labour, if you agree.

CC Minister of Justice
Minister of Labour

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Holidays Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.