Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes with interest the adoption of the Holidays Act, 2003 which increased the minimum annual holiday entitlement from three to four weeks as from 1 April 2007. It also notes the Government’s explanations concerning the practice of the Employment Court and of the Employment Relations Authority in determining the “employee” status of persons as a preliminary matter in cases where the actual nature of the work relationship comes into question. Moreover, the Committee notes the general comments of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand which were attached to the Government’s report as well as the Government’s reply.

Article 2, paragraph 3(b), of the Convention. Period of sickness not to be included in annual leave. The Committee notes that, under section 36 of the Holidays Act, where an employee is sick or injured before commencing scheduled annual holidays, the employee is entitled to take any scheduled annual holidays as sick leave. It also notes that under section 38 of the Act, where an employee is sick or injured during annual holidays, the employee and employer may agree that the employee take the period of sickness or injury as sick leave rather than annual holidays. Recalling that under this Article of the Convention, sickness must not be deducted from holidays with pay under any circumstances, irrespective of whether sickness occurs in the course of the holiday, or at the time when the holiday is due to start, the Committee requests the Government to take the necessary steps in order to bring its legislation into line with the requirements of the Convention on this point.

Part V of the report form. The Committee notes with interest the detailed information provided by the Government concerning the three-year programme to promote better work–life balance, which involved policy initiatives, practical tools and research work. In this connection, it notes the adoption of the Employment Relations (Flexible Working Arrangements) Amendment Act, 2007, which aims at facilitating employees to fulfil their care and other family responsibilities by offering the possibility of flexible work arrangements. Moreover, the Committee notes the statistical information regarding the number of complaints received by the labour inspection services in the period 2003–08 alleging breaches of the Holidays Act. The Committee would appreciate if the Government would continue to provide up to date information on all aspects of the practical implementation of the Convention.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that Convention No. 52 is an outdated instrument and consequently States parties to this Convention should be invited to denounce it and ratify at the same time the more recent Holidays with Pay Convention (Revised), 1970 (No. 132) (see GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of employed persons in economic sectors other than agriculture by a State party to Convention No. 52 involves the immediate denunciation of the latter. The ratification of Convention No. 132 appears to be all the more opportune as the legislation of New Zealand, which provides for paid annual leave of four weeks for all employees in all sectors, is clearly more appropriate than Convention No. 52, and seems to be in substantial conformity with most of the provisions of Convention No. 132. The Committee requests the Government to keep the Office informed of any decision taken or envisaged concerning the possible ratification of Convention No. 132.