Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Holidays with Pay Convention, 1936 (No. 52) - New Zealand (Ratification: 1950)

Articles 2(3) and 4 of the Convention. Illness not to be counted as part of the holidays – Monetary compensation for leave not taken. The Committee recalls its previous comment in which it noted that sections 36 and 38 of the Holidays Act 2003 give only partial effect to this provision of the Convention since they do not ensure that periods of temporary incapacity due to sickness may in no case be deducted from annual paid leave. The Committee notes, in this connection, the comments of the New Zealand Council of Trade Unions (NZCTU) according to which the Government should take steps to bring the national law into conformity with this requirement of the Convention. It also notes the comments of Business New Zealand according to which employees should have some choice in the matter and not be required to use their sick leave whether they want to or not. The Committee requests the Government to consider suitable action in order to ensure that incapacity due to illness is not deducted from holidays with pay under any circumstances, as prescribed by this Article of the Convention.

In addition, the Committee notes that under section 28A of the Holidays Act, an employee may request his employer to pay out a portion of the holiday entitlement not exceeding one week. The Government explains that because only one week may be “cashed up”, employees are still entitled to the remaining three weeks of annual leave from work, which may not be traded. The Committee notes, in this respect, that the NZCTU opposes the “cashing up” of annual leave as detrimental to workers’ well-being and work–life balance and asks the Government to comply with the requirements of the Convention by repealing section 28A. The Committee wishes to observe that Article 4 of the Convention prohibits any agreement to relinquish the right to annual holiday with pay, for compensation or otherwise, it being understood that by “right to annual holiday” the Convention refers to the statutory holiday entitlement in each ratifying member State and not to the minimum prescribed by the Convention. The Committee accordingly requests the Government to consider appropriate measures to ensure full conformity with this Article of the Convention. Finally, the Committee wishes to draw the Government’s attention to the fact that because of the difficulties experienced by many countries in complying with the above requirements, Article 6(2) of the Holidays with Pay Convention (Revised), 1970 (No. 132) – which the Government is strongly encouraged to ratify – was deliberately drafted in more flexible terms leaving it to the competent authority to determine the conditions under which periods of incapacity for work resulting from sickness or injury might not be counted as part of the minimum annual holiday with pay while Article 12 of the same Convention prohibits agreements to relinquish the right to the minimum annual holiday with pay prescribed in Article 3(3) of that Convention.