CONVENTION 101  NEW ZEALAND

Article 22 of the Constitution of the ILO

Report for the period 1 July 2003 to 31 May 2008
made by the Government of New Zealand on the

HOLIDAYS WITH PAY (AGRICULTURE) CONVENTION, 1952 (No. 101)

1. Please give a list of the legislation and administrative regulations, etc., which apply the provisions of the Convention.  Where this has not already been done, please forward copies of the said legislation, etc., to the International Labour Organisation with this report.

   Please give any available information concerning the extent to which these laws and regulations have been enacted or modified to permit of, or as a result of, ratification.

   • Holidays Act 2003
   • Employment Relations Act 2000
      

   On 1 April 2004 the Holidays Act 2003 (the Act) came into force repealing and replacing the Holidays Act 1981. This Act:

   • clarifies and simplifies the application of holidays and leave entitlements;
   • makes holiday and leave entitlements relevant to modern working patterns;
   • balances the needs of employers and employees; and
   • provides entitlements at a socially acceptable level.

   The Committee was provided with a copy of the Holidays Bill, as it was introduced to Parliament, with the New Zealand Government’s previous report on the Holidays with Pay Convention 1936 (No.52). Amendments were made to the Act in 2004 in response to a review of the operation of the Act by a working group, convened by the Minister of Labour, comprised of representatives of employer and union organisations. These amendments clarified areas of uncertainty and remedied the unintended consequences of the Act. The underlying policy behind the Act which was to give all employees basic minimum rights to holidays and sick and bereavement leave remained unchanged. 

   As the Holidays Act 2003 applies to all employees including the Crown and its employees the State Sector Act 1988 is no longer applicable to the provisions of this Convention.

   A copy of the Holidays Act 2003 is available at the following link:
   http://legislation.govt.nz/act/public/2003/0129/latest/DLM236387.html

2. Please indicate in detail for each of the following articles of the Convention the provisions of the above-mentioned legislation and administrative regulations, etc. or other measures under which each article is applied.

   If the Committee of Experts or the Conference Committee on the Application of Conventions and Recommendations has requested additional information or has made an observation on the measures adopted to apply the Convention, please supply the information asked for or indicate the action taken by your Government to settle the points in question.

   Article I

   Workers employed in agricultural undertakings and related occupations shall be granted an annual holiday with pay after a period of continuous service with the same employer.

   The Holidays Act 2003 provides for paid annual holidays, public holidays, sick leave and bereavement leave for all employees, including those workers employed in agricultural undertakings and related occupations.

   Article 2

   1. Each Member which ratifies this Convention shall be free to decide the manner in which provision shall be made for holidays with pay in agriculture.
   2. Such provision may be made, where appropriate, by means of collective agreement or by entrusting the regulation of holidays with pay in agriculture to special bodies.
   3. Wherever the manner in which provision is made for holidays with pay in agriculture permits-
      1. There shall be full preliminary consultation with the most representative organisations of employers and workers concerned, where such exist, and with any other persons, specially qualified by their trade or functions, whom the competent authority deems it useful to consult;
      2. The employers and workers concerned shall participate in the regulation of holidays with pay, or be consulted or have the right to be heard, in such manner and to such extent as may be determined by national laws or regulations, but in any case on basis of complete equality.

   Provision is made for holidays with pay in agriculture in the same manner as it is made for holidays with pay in all sectors of the labour market. 

   Article 3

   The required minimum period of continuous service and the minimum duration of the annual holiday with pay shall be determined by national laws or regulations, collective agreement, or arbitration award, or by special bodies entrusted with the regulation of holidays with pay in agriculture, or in any other manner approved by the competent authority.

   Please indicate the minimum period of continuous service required in order that workers may enjoy annual holidays with pay, and state what is the minimum duration of these holidays, indicating the manner in which it has been determined.

   Under the Holidays Act 2003 all employees, irrespective of age, are entitled to 4 weeks annual holidays after working for the same employer for 12 months.

   Article 4

   1. Each member which ratifies this Convention shall be free to determine, after consultation with the most representative organisations of employers and workers concerned, where such exist, to which undertakings, occupations, and categories of persons referred to in Article 1 the provisions of the Convention shall apply.
   2. Each Member which ratifies this Convention may exclude from the application of all or any of the provisions of the Convention categories of persons whose conditions of employment render such provisions inapplicable to them, such as members of the farmer’s family employed by him.

   Please indicate the undertakings, occupations and categories of persons to which the provisions for the Conventions apply, and state whether the mosts representative employers’ and workers’ organisations concerned were consulted before the scope of the Convention was thus determined.
   Please indicate the categories of persons with regard to which the provisions of the Convention may have been considered to be inapplicable in view of their conditions of employment.

   The provisions of the Convention are met through the application of the Holidays Act 2003.  The Holidays Act applies to all employees defined in section 6 of the Employment Relations Act 2000 except persons intending to work. Section 6 of the Employment Relations Act defines employee as “any person of any age employed by an employer to do any work for hire or reward under a contract of service.”

   Article 5

   Where appropriate, provisions shall be made, in accordance with the established procedure for the regulation of holidays with pay in agriculture, for-

   1. more favourable treatment for young workers, including apprentices, in cases in which the annual holiday with pay granted to adult workers is not considered adequate for young workers;
   2. an increase in the duration of the annual paid holiday with the length of service;
   3. proportionate holidays or payments in lieu thereof, in cases where the period of continuous service of a worker is not of sufficient duration to qualify him for an annual holidays with pay but exceeds such a minimum period as may be determined in accordance with the established procedure, temporary interruptions of attendance at work due to such causes as sickness or accident.

   Please indicate whether it has been deemed appropriate to give effect to all or any of the provisions of this Article and, if so, please indicate where appropriate-

   4. the scheme of holidays enjoyed by young workers, including apprentices;
   5. the increase in the duration of holidays with the length of service;
   6. the proportionate holiday or payment in lieu thereof given to a worker whose period of continuous service is too short to qualify him for an annual holiday with pay but exceeds a specified minimum period, indicating the length of such minimum period;
   7. (I)the public and customary holidays, (ii) the weekly rest periods, and (iii) the temporary interruptions of attendance at work due to such causes as sickness or accident, which are not included in the holidays with pay.

   The provisions of the Holidays Act 2003 are applicable to all employees without exception irrespective of age. 

   Employers and employees are free to negotiate service related or any other extensions to annual leave. Section 6 of the Act provides that the entitlements set out in the Act are an employee’s minimum entitlements and that the Act does not prevent an employer from providing an employee with enhanced or additional entitlements on a basis agreed with the employee.

   Under section 40 of the Act, where a public holiday falls within a period that an employee is taking as annual holidays, then that day must be treated as a public holiday and not as part of the employee's annual holidays.

   Under sections 36 and 38 of the Act, where an employee is sick or injured (or their spouse or a dependent is sick or injured):

   • before commencing scheduled annual holidays, the employee is entitled to take any scheduled annual holidays as sick leave.
   • during annual holidays, the employee and employer may agree that the employee take the period of sickness or injury as sick leave rather than annual holidays.

   Under section 39 of the Act, where an employee uses up their entitlements to sick leave, but then becomes or remains sick or injured, then their employer may agree to the employee taking annual holidays for the remaining period of sickness or injury. This also applies where the employee's spouse or a dependent is sick or injured. An employer cannot, however, require an employee to take annual holidays in this situation.

   Section 20 of the Holidays Act enables all employers and employees, including those in agricultural undertakings and related occupations, to agree that the employee can take an agreed portion of their annual holidays before the employee has worked for the same employer for twelve months.

   Some employers usually close down for a seasonal break.  If an employee has worked less than 12 months they are paid 8% of their gross earnings up to the time the workplace closes for the seasonal break.

   Article 6

   The annual holiday with pay may be divided within such limits as may be laid down by national laws or regulations, collective agreement, or arbitration award, or by special bodies entrusted with the regulation of holidays with pay in agriculture, or in any other manner approved by the competent authority.

   Please indicate the limits laid down by national laws or regulations, collective agreements, etc., within which holidays with pay may be divided in accordance with this Article.

   Please refer to Article 2 of the New Zealand’s government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

   Article 7

   1. Every person taking a holiday in virtue of this Convention shall receive, in respect of the full period of the holiday, not less than his usual remuneration, or such remuneration as may be prescribed in accordance with paragraphs 2 and 3 of this Article.
   2. The remuneration payable in respect of the holiday shall be calculated as prescribed by national laws or regulations, collective agreement, or arbitration award, or by special bodies entrusted with the regulation of holidays with pay in agriculture, or in any other manner approved by the competent authority.
   3. Where the remuneration of the person taking a holiday includes payments in kind, provision may be made for the payment in respect of holidays of the cash equivalent of such payments in kind.
   4. Please indicate the manner in which the remuneration paid for the period of holiday is calculated and the prescriptions governing this method of calculation.

   Please refer to Article 3 of the New Zealand’s government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

   Article 8

   Any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void.

   Please refer to Article 4 of the New Zealand’s government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

   Article 9

   A person dismissed for a reason other than his own misconduct before he has taken a holiday due to him shall receive in respect of every day of holiday due to him in virtue of this Convention the remunerations provided for in Article 7.

   Please indicate whether there is a system of appeal ensuring for workers the benefit of the provisions of Article 9.

   Please refer to Article 6 of the New Zealand’s government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

   Article 10

   Each Member which ratifies this Convention undertakes to maintain, or satisfy itself that there is maintained, an adequate system of inspection and supervision to ensure the application of its provisions.

   Please indicate the system of inspection and supervision maintained to ensure the application of the provisions of the Convention.

   The provisions of this Convention are applied through the operation of the Holidays Act 2003.  The system of inspection and supervision that is maintained in relation to the Holidays Act is discussed below under Section III.

   Article 11

   Each Member which ratifies this Convention shall communicate annually to the International Labour Office a general statement indicating the manner in which the provisions of the Convention are implemented, and, in summary form, the occupations, categories and approximate number of workers covered, the duration of the holidays granted and the more important of the other conditions, if any, established relevant to holidays with pay in agriculture. Please supply the information specified in this Article.

   Persons Employed in Agriculture and Persons Employed in the Labour Force 2000-2008 (Statistics New Zealand)

   year	total	agriculture	Agriculture as % of total workforce
   2000	1,808,000	141,000	7.8%
   2001	1,854,000	150,000	8.1%
   2002	1,908,000	148,000	7.8%
   2003	1,951,000	144,000	7.4%
   2004	2,017,000	139,000	6.9%
   2005	2,073,000	137,000	6.6%
   2006	2,117,000	141,000	6.7%
   2007	2,156,000	144,000	6.7%

   Article 14

   1. Declarations communicated to the Director-General of the International Labour Office in accordance with paragraph 2 article 35 of the Constitution of the International Labour Organisation shall indicate-
      1. the territories in respect of which the Member concerned undertakes that the provisions of the Convention shall be applied without modification;
      2. the territories in respect of which it undertakes that the provisions of the Convention shall be applied subject to modifications, together with details of the said modifications;
      3. the territories in respect of which it reserved its decision pending further consideration of the position.
   2. The undertakings referred to in subparagraphs (a) and (b) of paragraph 1 of this Article shall be deemed to be an integral part of the ratification and shall have the force of ratification.
   3. Any Member may at any time by a subsequent declaration cancel in whole in part any reservation made in its original declaration in virtue of subparagraph (b), (c), or (d) of paragraph 1 of this Article.
   4. Any Member may, at any time at which the Convention is subject to denunciation in accordance with the provisions of Article 16, communicate to the Director-General a declaration modifying in any other respect the terms of any former declaration and stating the present position in respect of such territories as it may specify.

   The Convention applies without modification to all of New Zealand. 

   Tokelau is New Zealand's only non-metropolitan territory.  The Convention does not apply to Tokelau.

3. Please state to what authority or authorities the application of the above-mentioned legislation and administrative regulations, etc., is entrusted and the methods for supervising and enforcing that application.  In particular, supply information on the organisation and working of inspection.]

   Refer to statement provided under Article 14.

4. Please state whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention.  If so, please supply the text of these decisions.

   Please refer to the New Zealand Government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

5. Please give a general appreciation of the manner in which the Convention is applied in your country, including, for instance, extracts from official reports and information on any practical difficulties in the application of the Convention.

   Please refer to the New Zealand Government’s current report on the application of the Holidays with Pay Convention 1936 (No.52).

6. Please indicate the representative organisations of employers and workers to which copies of this report have been provided.

   New Zealand Council of Trade Unions
   Business New Zealand

Response to comments made by the Committee of Experts on the Application of Conventions and Recommendations in 2003

In view of the information supplied by the Government, Business New Zealand and the New Zealand Council of Trade Unions (NZCTU), the Committee refers to its comments made under the Holidays with Pay Convention, 1936 (No. 52).

Please refer to the New Zealand Government’s current report on the application of the Holidays with Pay Convention, 1936 (No.52).