All employees: part time, full time, fixed term and casual (but not including the Armed Forces) get at least:
- four weeks of paid annual holidays (commonly referred to as annual leave) each year for rest and recreation (some fixed-term and ‘casual’ employees may agree to get annual holidays on a ‘pay-as-you-go’ basis)
- 11 public holidays each year, (if they are days they would otherwise work). These are days of national, religious, or cultural significance, and employees should be able to take them as leave, where possible
- access to sick leave and bereavement leave:
- after six months of current continuous employment with the same employer, or
- after working for the employer for six months for an average of 10 hours per week, and at least one hour in every week, or 40 hours in every month.
Payment for annual holidays is calculated differently from payment for public holidays, alternative holidays, bereavement leave and sick leave. Employers must make sure that each holiday and leave type is calculated correctly. If you are not sure, contact us.
If an employee works on a public holiday they must be paid for their hours worked at the rate of at least time and a half. If the day is an otherwise working day for them, they will also be entitled to an alternative holiday (unless they are employed to work only on public holidays).
If you are an employee having problems with getting your leave or holidays entitlements, you should discuss this with your employer first. If this doesn’t fix the problem, you can speak to your union representative or contact us.
A Labour Inspector may enforce the minimum rights in the Holidays Act 2003. The maximum penalty for breach of the minimum rights is $50,000 in the case of an individual. For companies the penalty is the greater of $100,000 or three times the amount of the financial gain made by the company.
If a provision for annual holidays, public holidays, alternative holidays, bereavement or sick leave entitlements in an employment agreement is better than the minimum rights in the Holidays Act 2003 then an employee gets the holidays or leave in the employment agreement. For example an employment agreement may provide five weeks’ annual holidays, or for no limits on the amount of unused sick leave that may be carried over from year to year etc. If the holidays and leave provided by the Holidays Act 2003 is better than the holidays and leave provided in the employment agreement, or if the employment agreement doesn’t include specific provisions for that type of leave, then an employee gets what the Holidays Act 2003 provides.
The Holidays Act 2003 contains the minimum entitlement for each type of holiday and leave. Each entitlement stands alone and can’t be ‘traded off’ on a package basis. For example, an employer and employee can’t agree that the employee will give up their right to time and a half for work done on a public holiday in exchange for an extra week of annual holidays.
As an employer, if you would like assistance with drafting an employment agreement provision for leave or holidays, use the Employment Agreement Builder.
The Holidays Act 2003 does not apply to members of the Armed Forces; they have different holiday and leave entitlements. This includes the Navy, Army and Air Force; but not the cadet forces.
If an employer dismisses an employee (for any reason) and then rehires them within one month, the employee’s employment is generally treated as being continuous for calculating sick leave, bereavement leave, public holidays and annual holidays, This is unless a Labour Inspector makes a decision that the employer acted in good faith rather than to avoid their holidays and leave obligations.
For example, Ata is dismissed from her job for reason of redundancy on 24 December and her employer rehires her on 5 January because another employee resigned and there is a vacancy. Ata’s employment is treated as being continuous for leave and holidays and her employer needs to work out her entitlement to the Christmas and New Year public holidays (depending on Ata’s work pattern). If they can’t work out her entitlement, they should contact us.
This doesn’t apply to employees who resign and are rehired, or whose genuine fixed-term employment agreement comes to an end and another genuine fixed-term agreement begins within one month (unless the employee and employer agree to this as part of the employment agreement).