Labour Minister Trevor Mallard's speech to the first reading of the Holidays (transfer of public holidays) Amendment Bill, Parliament

Madam Speaker, I move that the Holidays (Transfer of Public Holidays) Amendment Bill now be read a first time.

I intend to move I move that the Holidays (Transfer of Public Holidays) Amendment Bill be referred to the Transport and Industrial Relations Committee for consideration, that the committee report the bill by 22 July 2008,and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on Friday in a week in which there has been a sitting of the House, despite Standing Orders 192 and 195(1)(b) and (e).

Madam Speaker, this bill amends the Holidays Act 2003 in relation to the transfer of public holidays for employees whose work shift crosses midnight. It will ensure that when a shift spans two days, at least one of which is a public holiday, an agreement can be reached, by an employer and employee, so that the public holiday can be recognised on one whole shift.

This legislation is needed following a recent Supreme Court decision which found that an employer and employee cannot agree to transfer a public holiday from a day listed in the Holidays Act to another day. The Holidays Act was intended to give employers and employees the flexibility to agree to transfer a public holiday from a day listed in the Holidays Act.  This could be for reasons of cultural or personal significance or for reasons of convenience. 

The current situation, of not being able to transfer public holidays, is having a particularly disruptive effect on shift-based operations.  In these businesses, many employees whose work shift crosses midnight are not able to enjoy a full shift as a public holiday.  Many shift-based operations are experiencing increased production and payroll costs.  For example, business compliance costs are increased where employees’ wages have to be calculated at differing rates for an entire shift when the shift crosses into a public holiday.  Presently, where a business chooses to close down on the public holiday their employees may be required to work up to midnight when the public holiday starts, and complete their shift from midnight at the end of the public holiday. Such arrangements are not reflective of the overall intent of the Holidays Act to promote balance between work and other aspects of employees’ lives.

This bill responds to the needs of businesses that operate over 24 hour periods, and their employees, to ensure that employers will have the flexibility to transfer a public holiday in line with their business needs and that employees working shifts that span two days are able to enjoy the application of a public holiday to one whole shift. 

The bill provides that where an employee’s shift spans two calendar days, and one of those days is a public holiday, an employer and employee can enter into a genuine agreement to transfer the public holiday to a 24 hour period that begins or ends on the public holiday, if the employee is due to work a shift in that 24 hour period.

The bill also provides for situations where an employee’s shift spans two public holidays, for example an employee who starts work on Christmas Day and finishes on Boxing Day. In this situation, an employer and employee can agree that two separate periods of 24 hours are to be treated as public holidays if each period starts or finishes during those public holidays. These provisions reflect the intent behind allowing transfer while also maintaining a connection to the actual public holidays.

The bill requires that agreements concerning the transfer of public holidays be in writing. This will ensure that employers and employees are clear about their public holiday arrangements.

The bill also clarifies that the period agreed to be treated as a public holiday will be a public holiday whether or not the employee actually works during that period. The provisions of the Holidays Act that apply to public holidays will apply to that period.  Employees who do not work in the period which has been agreed as the public holiday are able to enjoy a full shift off as a paid public holiday. Employees who work in the period will receive time and a half for the entire shift and an alternative holiday. This ensures that agreements to transfer public holidays do not lead to a reduction in the number of paid public holidays that would otherwise be available to the employee.

The bill makes consequential amendments to the Holidays Act in respect of the definition of a public holiday and the provisions that were intended to allow for transfer of public holidays.  The Bill amends the definition of a public holiday in the Holidays Act, to clarify that a public holiday is a day listed in the Holidays Act, and, that if there is a transfer agreement, a public holiday will include the period agreed to be treated as a public holiday.

As this bill applies only to employees whose work period crosses midnight, the bill clarifies that the transfer of public holidays can only occur in these limited circumstances.

Madam Speaker, this bill responds to the needs of employers and employees. For this reason it has the support of both Business NZ and the New Zealand Council of Trade Unions (NZCTU). It reflects the Labour-led government’s policy to provide holiday and leave entitlements that are appropriate to accommodate increased diversity in working patterns. It also responds to the diverse work/life circumstances that are common in New Zealand whilst balancing the needs of employers and employees.

I commend this Bill to the House.