Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

New Zealand

Holidays with Pay Convention, 1936 (No. 52) (Ratification: 1950)
Holidays with Pay (Agriculture) Convention, 1952 (No. 101) (Ratification: 1953)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 52 and 101 (holidays with pay) together.

Article 2(3) of Convention No. 52 and Article 5(d) of Convention No. 101. Illness not to be counted as part of the holidays. Following its previous comments, the Committee notes the Government’s indication in its report, that pursuant to section 38 of the Holidays Act 2003, as amended up to 2022, where an employee has been allowed to take annual holidays and becomes sick or injured before such holidays, the employer must allow that employee to take as sick leave any period of sickness or injury that the employee would otherwise take as annual leave. The Government also indicates that where the employee becomes sick during annual holidays, the employee can take as sick leave any period of sickness or injury that they would otherwise take as annual leave, with their employer’s agreement. The Committee notes this information, which addresses it previous request.

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Monetary compensation for leave not taken. Prohibition to forgo holidays. Following its previous comments, the Committee notes the Government’s indication that the practice of receiving monetary compensation for a portion of the holiday entitlement not exceeding one week (“cashing up”), foreseen in section 28A of the Holidays Act 2003, can only be done at the employees’ request, in writing, and that the employer is not required to agree to such requests. The Government further indicates that employers may have a policy allowing them not to consider employees’ request for a portion of their annual holidays to be paid out, pursuant to section 28E of the Holidays Act 2003. While taking note of this information,the Committee recalls that under the Conventions any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, andrequests the Government to indicate the measures taken or envisaged to ensure that all workers covered by the Conventions, in all circumstances, effectively enjoy a determined period of paid annual leave as required by the Conventions, and to provide information in this regard.