Holidays Act17 January 2019
In (Wendco NZ Ltd v Labour Inspector of MBIE  NZERA Christchurch 199), the Employment Relations Authority (“Authority”) considered the question of how to assess an otherwise working day (“OWD”), and made it clear that assessment should not be applied on a “one size fits all” basis, and stated that the facts of each employee must be considered on a case by case basis, taking into account all of the factors in section 12 of the Holidays Act.
Similarly, the Employment Court in (McPherson v Carter Holt Harvey  NZEmpC 103) considered how leave entitlements are calculated on termination of employment. In this case, the employer operated 365 days per year, and its shift workers (of which Mr. McPherson was one), work on a four on, four off, 12-hour shift roster pattern. The parties could not agree upon McPherson’s termination how to calculate his “accrued leave” days, and alternate days.
This case was very complicated, and the Court spent a great deal of time working through the background facts between the parties and the wording of the collective agreement. What is clear from the judgment, is how complicated the Act can be in some cases to practically apply in shift/roster type work environments.
A Holidays Act Working Group has been established by the Government to carry out a full review of the Holidays Act, but they are not to report back until the middle of the year, and any changes to legislation from this will likely be 2-3 years away. Until then, we will have to work through the current rules.