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Holidays with Pay (Agriculture) Convention, 1952 (No. 101) - New Zealand (Ratification: 1953)

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

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.

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

Articles 5(d) and 8 of the Convention. Illness or injury not to be counted as part of the holidays – Monetary compensation for leave not taken. The Committee requests the Government to refer to the comments made under Articles 2(3) and 4 of the Holidays with Pay Convention, 1936 (No. 52).

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the observations made by the New Zealand Council of Trade Unions (NZCTU) concerning migrant workers in dairy farming (an estimated 5,000 seasonal workers a year from Kiribati, Tuvalu, the Solomon Islands but also the Philippines, India and Argentina) and the need to monitor their working conditions in order to minimize the risk of exploitation. In its reply, the Government indicates that the employment legislation applies to all workers, including migrant workers, without distinction.

Part V of the report form. The Committee notes the information provided by the Government concerning the evolution of the agricultural workforce in the period 2000–07. It would be grateful if the Government continued to provide up to date information on the practical application of the Convention, including, for instance, labour inspection results showing the number of contraventions of the relevant legislation observed and the sanctions imposed, copies of relevant collective agreements, etc.

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. 101 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 agriculture by a State party to Convention No. 101 involves the immediate denunciation of the latter. The ratification of Convention No. 132 appears to be all the more appropriate as the legislation of New Zealand, which provides for a four-week annual paid leave for all employees and all sectors of the national economy, is clearly more favourable than Convention No. 101 and reflects 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.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

In view of the information supplied by the Government, Business New Zealand and the New Zealand Council of Trade Unions (NZCTU), the Committee refers to its comments made under the Holidays with Pay Convention, 1936 (No. 52).

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s detailed report and the information supplied in response to its previous comments. It also notes the observations made by the New Zealand Employers’ Federation (NZEF) and the New Zealand Council of Trade Unions (NZCTU) sent with the report.

In view of the information supplied by the Government and the NZEF on the content of section 12 (1A) of the Holidays Act, 1981, the Committee invites the Government to refer to its comments on the application of the Holidays with Pay Convention, 1936 (No. 52), and expresses the hope that it will take account of them in the review of the legislation on holidays that it plans to undertake in cooperation with the social partners.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the observations made by the New Zealand Council of Trade Unions (NZCTU) on the application of the provisions of the Convention, as well as the Government's reply to these comments. Having examined all the information received, the Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

With reference to its previous comments, the Committee notes the information in the Government's report on the working of inspection and the system of sanctions established to ensure application of the provisions of the Convention. It would be grateful if the Government would continue to provide information on the practical application of these enforcement mechanisms (see Article 8 of the Convention and point III of the report form).

The Committee also notes the observations made by the New Zealand Council of Trade Unions (NZCTU) concerning the postponement of holidays pursuant to the Holidays Act, 1981, as well as the Government's reply to these comments. In this respect, the Committee observes that under section 12(1A) of the Holidays Act, 1981 (as amended in 1990), an employer may postpone within the 12-month period any holiday to which the worker is entitled and the worker's entitlement to that holiday shall not cease until it is allowed. The Committee recalls that, in accordance with the Convention, every person to whom the Convention applies, shall be entitled to an annual holiday of at least six working days (Article 2, paragraph 1, and Article 4 of the Convention) and that consequently, only part of the holiday which exceeds this minimum duration may be postponed (Article 2, paragraph 4). It therefore hopes that the Government will take the necessary measures in the near future to bring the legislation into conformity with the Convention on this point.