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CONVENTION 52 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 CONVENTION, 1936 (No. 52)

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As the Holidays Act 2003 applies to all employees including the Crown and its employees the State Sector Act 1988 is no longer applicable to the provisions of this Convention.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

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 1

This Convention applies to all persons employed in any of the following undertakings or establishments, whether public or private:
1. undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including undertakings engaged in shipbuilding or in the generation, transformation or transmission of electricity or motive power of any kind;
2. undertakings engaged wholly or mainly in the construction, reconstruction, maintenance, repair, alteration or demolition of any one or more of the following:
  - buildings,
  - railways,
  - tramways,
  - airports,
  - harbours,
  - docks,
  - piers,
  - works of protection against floods or coast erosion,
  - canals,
  - works for the purpose of inland, maritime or aerial navigation,
  - roads,
  - tunnels,
  - bridges,
  - viaducts,
  - sewers,
  - drains,
  - wells,
  - irrigation or drainage works,
  - telecommunication installations,
  - works for the production or distribution of electricity or gas,
  - pipe-lines,
  - waterworks,
  - and undertakings engaged in other similar work or in the preparation for or laying the foundation of any such work or structure;
3. undertakings engaged in the transport of passengers or goods by road, rail, inland waterway or air, including the handling of goods at docks, quays, wharves, warehouses or airports;
4. mines, quarries, and other works for the extraction of minerals from the earth;
5. commercial or trading establishments, including postal and telecommunication services;
6. establishments and administrative services in which the persons employed are mainly engaged in clerical work;
7. newspaper undertakings;
8. establishments for the treatment and care of the sick, infirm, destitute or mentally unfit;
9. hotels, restaurants, boarding houses, clubs, cafes and other refreshment houses;
10. theatres and places of public amusement;
11. mixed commercial;
12. and industrial establishments not falling wholly within any of the foregoing categories.
The competent authority in each country shall, after consultation with the principal organisations of employers and workers concerned where such exist, define the line which separates the undertakings and establishments specified in the preceding paragraph from those to which this Convention does not apply.
The competent authority in each country may exempt from the application of the Convention -
1. persons employed in undertakings or establishments in which only members of the employer's family are employed;
2. persons employed in public services whose conditions of service entitle them to an annual holiday with pay at least equal in duration to that prescribed by this Convention.

If advantage has been taken of paragraph 3 of this Article please state what exemptions, if any, have been made under (a) or (b) or both, indicating in respect of (a) the definition of the term “family” and in respect of (b) the conditions in view of which such exemptions have been granted. As regards (b) please also indicate the arrangements which have been made for persons employed in public services.

The Holidays Act 2003 provides for paid annual holidays, public holidays, sick leave and bereavement leave for all employees employed in New Zealand (including the Crown and its employees) except officers, ratings, soldiers or airmen in the New Zealand Defence Force.

The Holidays Act 2003 was introduced into Parliament and passed through the Select Committee process. This allowed the central organisations of employers and employees together with other employee and employer organisations and members of the general public to make submissions on the proposed legislation, before it became law.

Article 2

Every person to whom this Convention applies shall be entitled after one year of continuous service to an annual holiday with pay of at least six working days.
Persons, including apprentices, under sixteen years of age shall be entitled after one year of continuous service to an annual holiday with pay of at least twelve working days.
the following shall not be included in the annual holiday with pay:
1. public and customary holidays;
2. interruptions of attendance at work due to sickness.
National laws or regulations may authorise in special circumstances the division into parts of any part of the annual holiday with pay which exceeds the minimum duration prescribed by this Article.
the duration of the annual holiday with pay shall increase with the length of service under conditions to be prescribed by national laws or regulations.

Where in special circumstance advantage has been taken of paragraph 4 of this Article please state the length of the parts into which the annual holiday has been divided, at the time indicating the nature of the special circumstances.

Under the Holidays Act 2003 (the Act), all employees are entitled, irrespective of age, to a minimum of four weeks annual holidays after the first year of employment. The minimum entitlement increased from three to four weeks annual holidays from 1 April 2007.

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.

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.

Article 3

Every person taking a holiday in virtue of Article 2 of this Convention shall receive in respect of the full period of the holiday either:-

his usual remuneration, calculated in a manner which shall be prescribed by national laws or regulations, including the cash equivalent of his remuneration in kind, if any; or
the remuneration determined by collective agreement.

Under section 21 of the Holidays Act 2003 (the Act) payment for annual holidays is at the greaterofthe employee’s ordinary weekly pay at the time the holiday is taken or the employee's average weekly earnings over the 12-month period before the annual holiday is taken.

Employers and employees are free to negotiate better remuneration levels for annual holidays than those set out in the Act either through a collective employment agreement or through an individual employment agreement.

Article 4

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

The annual holiday provisions in the Holidays Act 2003 (the Act) are deemed to be part of any employment agreement.

Many employment agreements contain provisions that vary from the provisions of the Act. Such variations are often to the benefit of the employee – for example, by providing additional annual holidays, establishing a higher rate for annual holiday pay, or providing consultative arrangements about closedowns.

Section 6 of the Act sets out the relationship between the Act and employment agreements. An employment agreement that excludes, restricts, or reduces an employee’s entitlements under the Act has no effect to the extent that it does so; but is not an illegal contract under the Illegal Contracts Act 1970.

The Act does not prevent the employer providing the employee with enhanced entitlements. However, it is important that the employer and employee review such arrangements to ensure they are consistent with this Act.

The Act makes clear that each component of holiday arrangements must be at least as favourable to the employees as the entitlements specified in the Act.

This means, for example, that an employer cannot provide an employee with an extra week of annual holidays in exchange for the employee giving up their public holiday entitlements.

Article 5

National laws or regulations may provide that a person who engages in paid employment during the course of his holiday may be deprived of his right to payment in respect of the period of the holiday.

No such provision exists in New Zealand law.

Article 6

A person dismissed for a reason imputable to the employer 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 remuneration provided for in Article 3.

Under New Zealand employment law employees' paid holiday entitlements are not affected by the nature or the reason for the termination of the employees’ employment.

Article 7

In order to facilitate the effective enforcement of the provisions of this Convention, every employer shall be required to keep, in a form approved by the competent authority, a record showing:-

the date of entry into his service of each person employed by him and the duration of the annual holiday with pay to which each such person is entitled;
the dates at which the annual holiday with pay is taken by each person;
the remuneration received by each person in respect of the period of his annual holiday with pay.

Under section 81 of the Holidays Act 2003 (the Act) employers are required to maintain a holiday and leave record. This record may be written or electronic.

The holiday and leave record must contain the following information for each employee:

the name of the employee;
the date employment commenced;
the days on which an employee works, if the information is relevant to entitlement or payment under the Holidays Act;
the date the employee last became entitled to annual holidays;
the employee's current entitlement to annual holidays;
the employee's current entitlement to sick leave;
the dates any annual holiday, sick or bereavement leave was taken;
the amount of payment for any annual holidays, sick leave and bereavement leave taken;
the dates of and payment for any public holiday worked;
the number of hours worked on any public holiday;
the date on which the employee became entitled to any alternative holiday for any public holiday worked;
the dates and payment of any public holiday or alternative holiday on which the employee did not work, but for which the employee had an entitlement to payment;
the cash value of board and lodgings provided;
the cash value of any alternative holidays that the employee has surrendered for payment;
the date of termination; and
the amount of pay for holidays on termination.

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.

The Department of Labour is responsible for enforcing the provisions of the Holidays Act 2003 (the Act). This function is undertaken by the Labour Inspectorate of the Department. Employees, alternatively, can enforce their rights under the Act personally (or through a representative or union).

In undertaking the role of enforcing the Act, Labour Inspectors are able to provide assistance to employers in the course of their investigations to ensure that wage records and systems, agreements and policies meet at least the minimum required by law.

Labour Inspectors investigate in an impartial manner at all times, and work with employers to ensure that problems are resolved in a manner that stops them reoccurring.

In addition to enforcing the provisions of the Act the Labour Inspectorate also supplies employees and employers with general information on the minimum statutory condition of employment which is free of charge.

The Labour Inspectorate investigates all written complaints. The Labour Inspectorate will also investigate a potential breach of the Act where there are substantive grounds for believing a breach has occurred, without first receiving a written complaint. Such action is taken on a case by case basis.

The powers of Labour Inspectors include the power to enter workplaces and question any occupants, employees, or employers; to inspect and copy wage and time information; and to initiate proceedings to obtain compliance with the Act or to bring a penalty action against an employer in the Employment Relations Authority.

The normal process followed by the Labour Inspectorate upon receiving a written complaint of a breach of the Act is to, firstly, advise the parties of the applicable statutory provisions. Secondly, in order to establish if a breach had in fact occurred, the Labour Inspectorate would carry out an investigation into the matter. If a potential breach was identified and an initial approach failed to remedy the situation, a formal letter of warning of prosecution would be sent. If the breach was not remedied after the letter of warning was sent, the Labour Inspectorate would enforce the provisions of the Act through the Employment Relations Authority.

Under section 229 of the Employment Relations Act 2000 Labour Inspectors are able to seek a compliance order from the Employment Relations Authority in respect of any breach of the Holidays Act. Under section 76 of the Act the Labour Inspectorate may commence a penalty action against an employer for any breach of the Act.

Under section 75 of the Act an employer who fails to comply with the Act is liable if the employer is an individual, to a penalty not exceeding $5000 and if the employer is a company or other body corporate to a penalty not exceeding $10,000.

Labour Inspectors are empowered to act on an employee’s complaint that an employer has not paid money owed as wages or as holiday pay, or under the Minimum Wage Act 1983 or the Act. After receiving such a complaint, inspectors may, after giving the employer 7 days to comment on the complaint, issue a demand notice under section 224 of the Employment Relations Act 2000. They may do this if they are satisfied that the employee is entitled to the money as described and that the employer does not intend to pay that money.

As an alternative to serving a demand notice, a Labour Inspector may commence an action against an employer in the name of an employee for the recovery of arrears of wages or holiday pay, or money owed under the Minimum Wage Act 1983 or the Holidays Act 2003. The power of a Labour Inspector to take proceedings on behalf of an employee to recover unpaid holiday pay or leave pay is repeated in section 77(1) of the Act.

Under section 79 of the Act a Labour Inspector can make a determination of a dispute about entitlements under the Act. This section does not operate to prevent the Employment Relations Authority from making its own determination on the same issue.

The Organisation and Working of the Labour Inspectorate

The Labour Inspectorate is part of the Workplace Services Group of the Department of Labour. This Group also operates an Information & Promotion Service which includes a Primary Contact Centre whose function is to provide minimum code information to the public. The Contact Centre works very closely with Labour Inspectors and this allows Labour Inspectors to focus on their enforcement functions. This Contact Centre maintains a toll free 0800 number which employees and employers can call and obtain free and confidential advice on their employment rights and conditions.

The Labour Inspectorate also undertakes direct information provision through talks, worksite visits and seminars. In addition, as part of the effort to provide proactive advice and information to the public, the Department of Labour maintains an Employment Relations information website established on the Internet in August 1997. This website provides electronic access to brochures and information concerning employment rights and responsibilities which includes the Act. This website has proved very popular and was recently named website of the week in a major metropolitan newspaper, and congratulated for the helpful information included.

For the purposes of information provision and compliance activity relating to holidays, the staff resource comprises both Labour Inspectors and Information Officers. The workload and effectiveness of both the Labour Inspectorate and the Information Officers are under continual review to ensure their enforcement and information responsibilities are being met.

As at 31 March 2008 the Department of Labour had a staff of 30 Labour Inspectors as well as 36 full time Information Officers (including Team Leaders and managers).

Labour Inspectorate Staff at 31 March 2008

The Labour Inspectors are based in the following nine main urban centres (and frequently travel to other centres as the need arises). The normal establishment of the Inspectorate; and its distribution, is as follows:

Table 1: Geographical Distribution of Labour Inspectors
Location	Labour Inspectors*
Whangarei	1
Auckland	10
Hamilton	4
Tauranga	1
Napier	2
Palmerston North	2
Wellington	4
Christchurch	4 + 2 temporary part-timers.
Dunedin	2

* In addition there is a proposal to create two new positions, one in New Plymouth the other in Invercargill.

The Contact Centre is based in Auckland, although some Information Officers are based regionally. The Workplace Group is the result of recent re-structuring within the Department of Labour which has resulted in management of Labour Inspectors and Information Officers changing from a national to a regional management structure. The Labour Inspectorate is now supported by a system that includes Regional Managers, plus on site Service Managers and Team Leaders.

To ensure the effective discharge of their duties, Labour Inspectors have access to the services of Department of Labour legal staff when preparing and taking cases to the Employment Relations Authority and Employment Court.

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

None since the last Report.

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.

Refer to comments under Articles 1-7 for information on how the Holidays Act 2003 applies the Articles of the Convention.

Table 2: New Zealand Household Labour Force Survey Estimated Working-age Population, December 2007 quarter.
Age Group (years)	Males (000)	Females (000)	Total (000)
15–19	161.8	154.8	316.6
20–24	148.2	143.3	291.5
25–29	132.2	135.0	267.2
30–34	127.8	139.4	267.3
35–39	145.1	159.5	304.6
40–44	149.6	160.3	309.9
45–49	151.2	159.1	310.3
50–54	131.9	136.2	268.1
55–59	119.4	121.4	240.8
60–64	98.2	100.8	199.0
65+	229.7	268.8	498.5
Total	1,595.2	1,678.5	3,273.7

Source: Statistics New Zealand Household Labour Force Survey

Workload of the Labour Inspectorate

For the reporting period beginning 1 July 2003:

Complaints Alleging Breaches of the Holidays Act Received By the Labour Inspectorate

Complaints made to the Labour Inspectorate are made by employees, and are concerned with alleged breaches of Minimum Code legislation which includes the Holidays Act 2003. The table below shows the number of written complaints received by the Labour Inspectorate as they relate to annual holidays, statutory holidays and special leave. It is important to note that the total number of applications received is not equal to the sum of annual, statutory and special leave complaints as one complaint may relate to various areas of the holidays legislation or to other areas of the Labour Inspectorates work.

Table 3: Complaints Received by the Labour Inspectorate 01 July 2003 to 31 February 2008.
	01/07/03-30/6/04	1/07/04 – 31/06/05	01/07/05- 31/06/06	01/07/06- 31/06/07	01/07/07- 31/02/08
Annual Holidays	1291	1307	1726	1242	740
Statutory Holidays	454	433	408	185	86
Sick and Bereavement Leave	118	138	70	4	0
Total Holidays	1863	1878	2204	1431	826
Total applications	2271	2374	2609	1743	1042

Table 4: Holidays Inquiries Received by the Information Centre 01 July 2003 to 31 March 2008.
	01/07/03- 30/06/04	01/07/04- 30/06/05	01/07/05- 30/06/06	01/07/06- 30/06/07	01/07/07- 31/03/08
Annual Holidays	27,873	20,125	16,724	38,525	35,813
Statutory Holidays	20,234	19,170	12,103	18,397	14,562
Sick and Bereavement Leave	10,549	8,391	6,662	12,516	11,747
Total Inquiries received	58,656	47,686	35,489	69,438	62,122
Percentage of Holidays Inquiries
Annual Holidays	48%	42%	47%	55%	58%
Statutory Holidays	34%	40%	34%	26%	23%
Sick and Bereavement Leave	18%	18%	19%	18%	19%

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

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

Article 2, paragraphs 1, 2 and 4, of the Convention. The Holidays Bill, 2003, currently under parliamentary discussion, only partly repeals section 12(1A) of the Holidays Act, 1981, which provides that, where the employer fails to allow the employee to take the leave or part of it within 12 months from the entitlement to it, he is bound to grant the leave and the entitlement to it remains in force until it is allowed. In so far, sections 15(a) and 18(1) of the Bill, according to which the employer shall allow the employee to take the annual holiday of at least three weeks within 12 months after the date on which the employee’s entitlement arose, and to take at least two weeks of it in a continuous period, ensure conformity with these provisions of the Convention. However, conformity with these provisions is again called into question by section 16(3) of the Bill, which lets section 12(1A) of the Holidays Act, 1981, unchanged in so far, as the entitlement to holiday remains in force until the employee has taken all of it. As a consequence, although the employer is bound to grant the holiday, as prescribed in section 18(1) of the Bill, the employee may postpone it. The Committee, therefore, must reiterate that, according to Article 2, paragraph 4, of the Convention only the part of the paid annual leave which exceeds the minimum prescribed in Article 2, paragraphs 1 and 2, may be postponed. It regrets that the Holiday Bill in its present form does not give full effect to these provisions of the Convention and again expresses the hope that the Government will take the necessary action. The Committee requests the Government to keep it informed on all developments in this regard.

Under the Holidays Act 2003 (the Act), an employee is entitled to four weeks paid annual holidays on each anniversary of the date of commencing employment on or after 1 April 2007. Section 18 provides that:

the leave can be taken at any time agreed between the employer and the employee;
employees must be given the opportunity to take at least two of the four weeks leave in a continuous period, if they wish to do so; and
an employer must not unreasonably withhold consent to an employee’s request to take annual holidays.

Under section 19 of the Act an employer can also require an employee to take annual leave if the employer and employee are unable to reach agreement as to when the employee will take annual holidays.

Section 16 of the Act provides that an employee’s entitlements to annual holidays remains in force until the employee has taken all of the entitlements as paid annual holidays. Annual leave that is not taken must be paid out to the employee on termination of employment. This section reinforces that annual leave should be taken once the entitlement has arisen rather than be allowed to accumulate.

Together these provisions give effect to the Convention by ensuring an employee’s entitlements to annual leave.

Referring to section 6 of the Employment Relations Act (No. 24) of 2000, the Government indicates that, in order to qualify for holidays, the worker needs to be classified as an employee. It takes the view that this regulation, which authorizes the employment relations authority or the court to determine the employment status of a worker, including under the Holidays Act, 1981, makes it easier for a worker to challenge this status, where the relationship is given a label that does not reflect the reality of the situation. This procedure may be considered as an alternative to good faith employment relations (section 4 of the Employment Relations Act), where these do not function properly, including divergences between the employer and the employee on the worker status, as defined under section 6(1)(a) and (b) of this Act. On the other hand, it makes it more difficult for an employee to enjoy his right to holiday, whenever the employer disputes his status as employee. The Committee asks the Government to provide further information on the practical application of section 6 of the Employment Relations Act and its provisions related to jurisdiction or determinations by the authority or the court on status matters, as for example provided for under sections 161, 174 and 178 of the Act.

Section 6(1)(a) of the Employment Relations Act 2000 (the Act) specifies ‘employee’ means “any person of any age employed by an employer to do any work for hire or reward under a contract of service”.

Section 6(2) provides that in deciding whether a person is employed by another person under a contract of service, the Employment Court (the Court) or the Employment Relations Authority (the Authority) must determine the real nature of the relationship between them. In practice this means that the Court’s have developed a series of tests to ascertain the real nature of the relationship. These tests are as follows:

the intention of the employer and employee is to form an employment relationship, and this is shown in any written agreement or correspondence and/or by the behaviour of the parties to it;
the employer or their agent controls the hours worked;
the employer or their agent has the power to hire and fire;
the employer makes the profit or loss from the enterprise;
the employer deducts Accident Compensation Corporation (ACC) premiums and Pay As You Earn (PAYE) tax on behalf of the employee;
the employer supplies materials for the work;
the employer owns or leases the equipment needed; and
the employee is bound to one employer at a time and is expected not to compete or offer his or her skills to competitors of the employer.

The principles established by the Employment Court on section 6 of the Act can be summarised as follows:

The Court must determine the real nature of the relationship;
The intention of the parties is still relevant but no longer decisive;
Statements by the parties, including the contractual statements are not decisive of the nature of the relationship;
The real nature of the relationship can be ascertained by analysing the tests that have been historically applied such as control, integration and the “fundamental” test;
The fundamental test examines whether a person performing the services if doing so on their own account; and
Another matter which may assist in the determination of the issue is industry practice although this is not determinative of the primary question.

Under section 161 of the Act the Authority can make a determination about whether a person is an employee as a preliminary matter in cases where the actual nature of the relationship comes into question, for example, where there is an action to recover arrears of wages or holiday pay.

Section 174 of the Act provides that in every decision the Authority must include its findings of fact and law, its conclusions on the issues, and its orders. The decision does not need to include a record of the evidence or submissions heard, or explain specific findings of credibility, or record the process followed by the Authority. This section is intended to reduce the formality of the Authority’s decisions, thereby enabling it to deliver speedy, informal, and practical justice to the parties.

Section 178 provides that certain cases may be removed to the Court for hearing and determination at first instance. Where the Authority refuses to exercise its power under the section, a party may apply to the Court for special leave. The Court may return proceedings to the Authority if it considers that the power of removal should not have been exercised.

In Daly v Athlete Management International Ltd, unreported, February 2006 (WA 26/06) the main issues were alleged unjustifiable dismissal and dispute over whether the relationship was an employment relationship or independent contractor. Pursuant to section 178(2)(d) of the Act the Authority determined that in all the circumstances of the case the Court should determine the matter. The factors supporting removal to the Court were the seriousness of the issues between the parties and the fact that the Court also had proceedings involving similar or related issues where the applicant was an interested party.

A copy of the decision is attached to this report.

The Court can be asked to determine employment status either of an individual or a group of people in the same position.

The Committee has also taken note of the observations made by Business New Zealand and the New Zealand Council of Trade Unions in view of the Holidays Bill. While the employers’ association would rather leave the determination of essential issues related to paid leave to the parties concerned, the workers’ side stresses that the problems workers are facing with the change of work patterns and current work pressures require compensation by more recovery time. It therefore wishes to see the minimum mandatory annual leave of three weeks for full-time workers, as currently provided for under the Holidays Bill, to be extended to four weeks. The Government, in reply to the workers’ observation, refers to its initiative to develop a work-life balance policy over the next year. The Committee asks the Government to keep it informed on any progress in this respect.

In November 2004 the government agreed to a three-year work programme to promote a better balance between paid work and life outside of work. The focus of the work programme has been on workplace cultures and practices, recognising that workplace initiatives on work-life balance must be underpinned by supporting cultures and attitudes, if the initiatives are to be effective.

Progress on the work programme includes:
Policy work - covering the right to request flexible work arrangements, parental leave, carer’s leave carers, work-life balance solutions for people with multiple care responsibilities, breaks and infant feeding provisions. This work is underway in all areas. The right to request flexible work arrangements has been legislated and covers employees with caring responsibilities. The government is also developing a Carers Strategy that aims to give carers choices and opportunities to enter, progress or stay in education or employment.

Influencing change in workplaces - The government has produced a number of resources for employers to help them to develop and implement work-life balance initiatives in their organisations. The resources have been developed from demonstration where the government worked in partnership with a group of workplaces to develop and trial practical customised work-life balance tools designed to meet the business needs of employers while meeting the work-life balance needs of their employees. This is also linked to the government’s work on workplace productivity. Seven drivers of workplace productivity have been identified for use and implementation in New Zealand workplace. These include building better leadership and management, organising work, networking and collaborating, investing in your people and their skills, encouraging innovation and using technology to get ahead, creating productive workplace cultures, and measuring what matters.

Research - The government also completed a national baseline survey of employers and employees in 2005 to provide for the first time comprehensive information on the level of awareness, provision and uptake of work-life balance practices in New Zealand workplaces. The survey results were released in mid-2006 and provides benchmark data against which to assess improvements to the work-life balance of New Zealanders. Key findings of this survey of work-life balance in New Zealand suggested that the most common work-life initiatives offered by employers were:

being able to occasionally vary start and finish times to cope with a problem;
using personal sick leave to care for others;
flexible break provisions; and
study leave.

The first two of these initiatives were identified by workers as amongst the most helpful. The single most helpful arrangement was having flexible start and finish times. The survey is being repeated in 2008.

The full Work-life Balance 2006 survey report is available on the Department’s website (see http://www.dol.govt.nz/worklife/snapshot.asp). The survey is being repeated in 2008.

Publications on how to make work-life balance work are available and set out practical steps of making work-life balance achievable within organisations. Further information is available at http://www.dol.govt.nz/worklife/index.asp.

By addressing caring responsibilities and workplace practices and cultures as barriers to work-life balance, this work supports gender equity in the labour market by recognising the specific circumstances affecting women’s ability to balance work and caring responsibilities. It may also improve the labour force participation for women and other groups not currently in paid work. The government recognises that improved work-life balance contributes to increased workplace productivity, improved well-being and quality of life, and addressing the labour market issues and skill shortages.

Employment Relations (Flexible Working Arrangements) Amendment Act 2007

The Employment Relations (Flexible Working Arrangements) Act was passed in November 2007 and will come into force on 1 July 2008. The Amendment Act provides a specific right for certain employees to request variations to their hours of work, days of work, or place of work. To be eligible an employee must have the care of any person and have been employed by their employer for 6 months prior to making the request. When making the request, the employee must explain how the variation will help the employee provide better care for the person concerned.

The Amendment Act requires employers to consider the request for flexible working arrangements and provides the only grounds upon which they can refuse a request. The Act also provides a process for how requests are to be made and responded to.

A review of the operation and effects of the Amendment Act is required 2 years after commencement and will include recommendations on whether the provisions should be extended to all employees.

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