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Court of Appeal reverses Employment Court decision on discretionary incentive payments

Discretionary payments have been a relatively grey area for businesses, and employers have sought, by contract or by policy, to avoid their liability to include bonus payments in any annual leave payment calculations on these grounds.   In 2020 the Employment Court made a decision which found these short-term incentive payments made by Metropolitan Glass […]

New Sick Leave Entitlements: Making a Healthier Workplace?

The topic of employee wellbeing has grown louder over the last few years. Now, it’s about to be even louder.  While not officially law, the Holidays Amendment Bill has now passed its third reading and is currently awaiting Royal Assent, which means it’s safe to say that it’s on its way.  The Bill proposes that […]

Dramatic Changes to the Holidays Act 2003

The Holidays Act 2003 will shortly undergo some of the biggest changes since it came into force on 1 April 2004. The Government established a Holidays Act Taskforce to review the Act and suggest improvements to address what was seen as a complicated and ambiguous Act. There were concerns that there was widespread non-compliance particularly […]

Why commission payments can put your business at risk: New Court of Appeal Judgement on calculation of annual leave

A recent decision by the Court of Appeal has potentially changed the way employers calculate and pay annual holidays, after the meaning of the word “regular” was defined in the context of the Holidays Act 2003 (the Act). Specifically, the Court considered whether productivity or incentive-based payments should be excluded from the ordinary weekly pay […]

Public Holidays and COVID-19: Frequently Asked Questions

It is likely that the public holidays will fall within New Zealand’s Alert 4 COVID-19 lockdown period, which means employers are beginning to ask questions about how they will pay their employees’ wages when they are receiving the government subsidies as well as beginning to face potential hardship. As employers’ obligations are not limited to […]

Review of the Holidays Act

29 May 2018: A taskforce that brings business, workers and Government together has been established to recommend changes to the Holidays Act 2003, says Workplace Relations and Safety Minister Iain Lees-Galloway. “The Holidays Act was enshrined in law to provide for minimum entitlements to annual holidays, public holidays, sick leave and bereavement leave, and protect worklife […]

Penalties for Employers Breaching Minimum Standards are more serious than ever

With tougher sanctions and penalties of up to $20,000 for each breach imposed on business owners, employers need to be confident they are meeting their minimum statutory obligations. In 2017 we have seen significant sanctions on employers and it seems every week the newspapers name and shame employers who have breached minimum standards. Penalties can […]

$57,000 fine for breach of minimum employment standards

This case highlights the heavy consequences and financial implications of knowingly breaching minimum employment standards. BBS is a horticultural company which contracts services to horticultural growers, particularly asparagus producers in the Waikato.  Upon a Labour Inspector visit in 2013, it was discovered the employees were not provided with individual employment agreements, there were no time […]

Calculating annual holiday pay

We’ve had a lot of questions lately about the calculation of annual holiday pay, whether to use ordinary weekly pay or average weekly earnings, and what should be included in the calculations. If an employee takes an annual holiday after the employee’s entitlement to the holiday has arisen, the employer must calculate the employee’s annual […]

Public Holidays over Christmas and New Year 2016/2017

This year the recognised Public Holidays over the Christmas and New Year period are as follows: Sunday 25th December 2015 – Christmas Day (observed on Tuesday 27th) Monday 26th December – Boxing Day Sunday 1st January 2016 – New Year’s Day (observed on Tuesday 3rd) Monday 2nd January – the day after New Year’s Day […]

Annual Closedowns

With Christmas only a few weeks away, we thought we’d do a brief reminder about Closedown Periods that often occur during this festive time. A Closedown Period means “a period during which the Employer customarily closes the Employer’s operations or discontinues the work of one or more Employees and requires his or her Employees to take […]

Easter trading: New rules for you and staff

If you’re a shop owner, new rules from Easter 2017 mean your council may let you open on Easter Sunday. However, you can’t make your employees work that day. This law change addresses growing demand from the public and retailers to open for business on Easter Sunday. Currently, the law restricts most — but not […]

Strengthening enforcement of employment standards

Employment standards are requirements such as the minimum wage, annual holidays and written employment agreements. They protect vulnerable workers and help to ensure workplaces are fair and competitive. As a result of the  Employment Standards Legislation Bill, new measures have come into force as at 1 April 2016.  Various statutes that govern the employment relationship have now been […]

Employment Standards Legislation Bill – Passed third reading

The Employment Standards Legislation Bill has passed third reading in parliament and will come into force 1 April 2016. This Bill has been further amended divided off into the following separate Bills: Parental Leave and Employment Protection Amendment Bill comprising clauses 1 and 2, Part 1, and Schedules 1 and 2 Employment Relations Amendment Bill […]

Easter holidays 2016

Easter Public Holidays The actual days which are classified as public holidays under the Holidays Act 2003 during Easter this year are: Good Friday – 25 March Easter Monday – 28 March (not Sunday!) Many people get Easter Sunday confused and think that this day is also a public holiday – this is not correct. […]

Employment Standards Bill

The Employment Standards Legislation Bill proposes to amend the New Zealand employment law to ensure it responds to the modern, dynamic business environment and encourages fair and productive workplaces. The key changes include: Extending paid parental leave to more workers and increase the flexibility of the scheme Strengthen enforcement of minimum employment standards Address issues […]

Christmas and New Year – Public Holidays 2015/2016

This year the recognised Public Holidays over the Christmas and New Year period are as follows: Friday 25th December 2015 – Christmas Day Saturday 26th December – Boxing Day (observed on Monday 28th December) Friday 1st January 2016 – New Year’s Day Saturday 2nd January – the day after New Year’s Day (observed on Monday 4th January) Public Holidays […]

Tougher sanctions for breach of minimum employment standards

The Government has introduced the Employment Standards Legislation Bill. In essence, this is to provide harsher sanctions for exploitative employment practices involving breach of statutory minima relating to wages and holidays. Greater investigative powers for Labour Inspectors and employment institutions will assist in bringing perpetrators to account. At present, the maximum fine is $10,000 for […]

Hastings businesses penalised for failure to provide records

ERA regarded failures as serious breach of employers’ duties to abide by relevant employment and holiday legislation and ordered each business to pay $7,500 in penalties to the Crown. The Employment Relations Authority (ERA) has ordered three Hawke’s Bay horticulture contractor businesses to pay a total of $22,500 in penalties for failure to provide employment […]

Employers reminded not to confuse part-time and casual workers

10 June 2015 The Ministry of Business, Innovation and Employment (MBIE) reminded employers today that part time employees who work regular rostered hours are entitled to pro-rated holidays and leave. The Ministry’s Labour Inspectorate regularly sees cases where people working part time are not getting their legal entitlements because the employer assumes they can just […]

ANZAC Day – The first time for “Mondayisation”

With ANZAC Day falling on a Saturday this year,  the new Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act or, as it is more commonly known, the ‘Mondayisation Bill’, will have its first big impact. The ‘Mondayisation Bill’ means that when Waitangi Day (6 February) or ANZAC Day (25 April) now fall on a […]

Cashing up of Annual Leave

The Holidays Act 2003 provides that on one or more separate occasions an employee can request that his or her employer pay out a portion of the employee’s annual leave entitlement. There are conditions and restrictions to this cashing up provision (sections 28A-F), the main ones of which are outlined below: An employee can only […]

Key Decision: Holiday pay ordered on incentive payment made post termination

A company that agreed with an employee to pay him an incentive payment if he remained with it until a certain date, or was made redundant or unjustifiably dismissed prior to that date, found that it was obliged to pay holiday pay on the incentive payment when it made him redundant. The incentive payment, to […]

Recent case: Employment of family members problematic

Employing family members can lead to problems as the case noted below shows. Family members should always be given written employment agreements and be paid at least the minimum wage. In Meroiti v Lindale Lodge Ltd [2013] NZERA Wellington 104, Graeme was employed by his brother John as manager of the Lindale Motor Lodge. The […]

Updated standards for medical certificates

On 30th October 2013, the Medical Council released its updated standards for doctors writing medical certificates. Employers are welcoming this update, which has come about from a recent period of review – including submissions from interested parties. The Medical Council chairperson, Dr John Adams says that the writing of medical certificates can be a complicated […]

Freeze order served to Auckland businesses fined for labour breaches

On 25 October, the Ministry of Business, Innovation and Employment’s Labour Inspectorate served freezing orders which were granted by the Employment Court, on three companies operating Auckland convenience and liquor stores owing over $200,000 for breaches of employment law.  It is the first time the Labour Inspectorate has used section 190 of the Employment Relations […]

Q & A: Expiration of annual leave

Jessie is employed by Magic Hire Ltd, a company which hires out costumes. Jessie has 40 days of annual leave owing to her. The company has asked Jessie on a number of occasions to reduce the number of days owing to her. However, Jessie has not taken any leave. Can Magic Hire Ltd tell Jessie […]

Q & A: Cashing up more than one week of annual leave

An employee is entitled to four weeks of annual leave. The employee has a large amount of annual leave owing. Both the employer and the employee have agreed that the employee can cash up any portion of the annual leave entitlement. Can the employee cash up more than one week per annum of annual leave […]

Holiday and sick leave entitlements of casual and part-time employees

In this article, we will address the following questions: I am preparing an employment agreement for a permanent part-time employee. We want to pay out their holiday pay on a “pay as you go” basis at 8% — is this OK? This part-timer will work two days per week, so how many sick days are […]

Q & A – Snow absenteeism, what to do?

Question: Some of my employees claim that they could not get to work because of heavy snow. They merely texted to say they would not be in but I am not sure how serious their situations really were. The employees say I must pay them for the days they did not work because they were“ready […]

When should I contact a Labour Inspector?

Labour Inspectors make sure that employers operate within the law in relation minimum entitlements – that is things like minimum wages, annual leave, and public holidays.  They can take action to enforce minimum standards through the Employment Relations Authority. If you believe you are receiving less than your legal minimum entitlements then ideally, you should discuss […]

Collective agreement defining “otherwise working day” binding

A collective agreement (CA) between Holcim (NZ) Ltd (the employer) and the New Zealand Merchant Service Guild IUOW Inc (the union) which covered masters, deck officers and engineering officers on two named vessels defined what would be an “otherwise working day” for the purposes of the Holidays Act 2003. Both parties, taking into account the […]

Suspension or sick leave?

Should employee be suspended on pay or given paid sick leave when employer deems he/she is unfit for work? Question: If an employer requests that an employee stay at home, or go home, because he or she is unwell or unfit for work, is this time off deemed to be sick leave and therefore able […]

ANZAC Day trading restrictions

Just a reminder that ANZAC Day is tomorrow and there are trading restrictions until 1pm.  If you’re not sure what these rules are click the link below to read the information on the Ministry of Business, Innovation and Employment website. http://www.dol.govt.nz/er/holidaysandleave/publicholidays/shop-opening-hours.asp

Mondayisation of Waitangi and ANZAC Day

The Bill providing for public holidays on Mondays when Waitangi Day or ANZAC Day falls on a Saturday or Sunday —the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill the was passed on 17 April 2013. (It awaits assent.) A Member’s Bill, it was not supported by the Government, but had support […]

Employee reimbursed for cancelled holiday

The Employment Relations Authority determined that an unjustifiably dismissed employee had suffered the loss of a benefit because he had to cancel a pre-arranged holiday and it awarded the employee the amount of the cancellation fee. The Employment Relations Act 2000 provides for compensation for loss of any benefit that the employee might have expected […]

Maternity, Parental Leave, and Annual Holidays

Question: We have an employee who is taking maternity leave and her final date of employment is within two weeks of the first of the Easter statutory holidays. The employee has either taken accrued holidays or will be paid out her entitlement when she leaves.  Are we obligated to pay her any of the Easter […]

Implications for employees with variable hours of work

When an employee works variable hours, there are many implications an employer needs to take into consideration.  Some of the most common implications are summarised in the article below. Hours of work There is no legislation directly governing how many hours an employee may work per week. The Minimum Wage Act 1983 (section 11B) requires that […]

Q & A – Can a permanent employee work different hours each week?

Question: Is it legal for an employee under a individual employment agreement to work variable hours per week? For example, in the retail sector, an employee may work for 30 hours one week, 50 hours in the following week, 20 hours in the third week, 60 hours in the fourth week and so on. Although the […]

Appeal allowed on calculation of holiday pay

Posties have been successful in a case relating to how the unrostered overtime performed by them should be factored into the calculation of their holiday pay. The overtime was expected to be performed and paid for if something occurred — unexpectedly high volumes of mail, injury, shortage of staff and the like — that meant […]

Calculation of Holiday Pay on Termination of Employment

Question: An employee’s last working day is 31 May 2012. His next holiday anniversary date is 1 April 2013. His annual leave due to 31 March 2012 is 30 days at $200 per day ($6,000). His gross earnings for the period 1 April 2012 to 31 May 2012 are $10,000. What is his final holiday […]