Employment Law
At HITO we want to keep you up to date with everything you need to know as an employer.
Read on to find out about employment law in relation to minimum wage, training wage, public holidays, bereavement leave and maternity leave.
This information is from the Department of Labour website. If you would like to know more, visit the DoL website at www.dol.govt.nz
The minimum wage
There are three minimum wage rates:
- the adult minimum wage applies to all employees aged 16 and over who are not new entrants or trainees
- the new entrants minimum wage applies to employees aged 16 and 17, except for those who have completed 200 hours or three months of employment in the workforce, whichever is shorter; or who are supervising or training other workers; or who are trainees
- the training minimum wage applies only to employees aged 16 and over who are doing recognised industry training involving at least 60 credits a year.
There is no statutory minimum wage for employees who are under 16 years old.
A small number of people hold an exemption from the minimum wage (see the section about minimum wage exemptions).
The minimum wage rates are reviewed every year. As of 1 April 2012 the adult minimum wage rates (before tax) that apply for employees aged 16 or over are:
- $13.50 an hour, which is
- $108.00 for an 8-hour day or
- $540.00 for a 40-hour week.
The rates that apply to new entrants, and employees on the training minimum wage (before tax), are:
- $10.80 an hour, which is
- $86.40 for an 8-hour day or
- $432.00 for a 40-hour week.
Employees have to be paid at least the minimum hourly wage rate for any extra time worked over eight hours a day or 40 hours a week.
Anyone who thinks they are being paid less than the minimum wage should call the Department of Labour on 0800 20 90 20.
What is the training minimum wage
The minimum training wage applies to people who are required by their employment agreements to undertake recognised industry training involving at least 60 credits a year. The new entrants minimum wage does not apply to trainees.
An employee being paid less than the relevant minimum wage can contact a Labour Inspector, who may intervene in the workplace to recover any money owed and ensure further problems do not occur. Employees can also get help from the Department of Labour’s Mediation Services.
Public holidays
Entitlements
Employees are entitled to a paid day off on a public holiday if it would otherwise
be a working day. These public holidays are separate from and additional to annual holidays.
The public holidays
There are two groups of holidays, with slightly differing entitlements applying to each:
- Christmas and New Year: Christmas Day (25 December), Boxing Day (26 December), New Year’s Day and the day after (1 and 2 January).
- All other holidays: Waitangi Day (6 February), Good Friday and Easter, Monday (dates variable), ANZAC Day (25 April), Queen’s Birthday (first Monday in June), Labour Day (fourth Monday in October) and Provincial Anniversary Day (date determined locally).
The public holidays over the Christmas and New Year period have special arrangements:
- If the holiday falls on a weekend, and the employee doesn’t normally work on the weekend, the holiday is transferred to the following Monday or Tuesday so that the employee still gets a paid day off if the employee would usually work on these days.
- If the holiday falls on a Saturday or Sunday and the employee normally works on that day, the holiday remains at the traditional day and the employee is entitled to that day off on pay.
An employee cannot be entitled to more than four public holidays over the Christmas and New Year period, regardless of their work pattern.
| Public Holiday | Not an otherwise working day | Is an otherwise working day |
|---|---|---|
| Christmas Day (Sunday 25th December 2011) | Christmas Day is transferred to Tuesday 27th December | Christmas Day is observed on the day it falls |
| Boxing Day (Monday 26th December 2011) | Not entitled to the public holiday | Boxing Day is observed on the day it falls |
| New Year’s Day (Sunday 1st January 2012) | New Year’s Day is transferred to Tuesday 3rd January | New Year’s Day is observed on the day it falls |
| New Year Holiday (Monday 2nd January 2012) |
Not entitled to the public holiday | New Year Holiday is observed on the day it falls. |
Following the Holidays Amendment Act 2010 an employer and employee can now agree to transfer a public holiday from the day listed in the Holidays Act 2003 to another day. See further details below under ‘Transferring a public holiday’.All other public holidays are celebrated on the day on which they fall. In years where Waitangi Day (6 February) or ANZAC Day (25 April) fall at the weekend, employees who do not normally work on the weekend have no entitlement to payment for the day.
Bereavement leave
Entitlement
There are two separate entitlements to bereavement leave after six months’ employment:
- On the death of an immediate family member, the Act provides for up to three days’ paid leave. This can be taken at any time and for any purpose genuinely relating to the death. “Immediate family members” are the employee’s spouse or partner, parent, child, sibling, grandparent, grandchild or the spouse’s parent. Where there is more than one bereavement, the employee is entitled to three days’ bereavement leave in respect of each death.
- In the event of a death outside the immediate family that causes a person to suffer bereavement, up to one day’s paid leave may be taken if the employer accepts that the employee has suffered bereavement. In considering whether a bereavement has occurred, the employer should take into consideration:
- how close the association was between the employee and the other person
- whether the employee is responsible for any aspects of the ceremonies around the death
- whether the employee has any cultural responsibilities they need to fulfil in respect of the death.
Payment where an employee is sick or bereaved on a public holiday
Where the employee would have been working on a public holiday but is sick or bereaved, the day would be treated as a paid unworked public holiday. Therefore:
- the employee would be paid their relevant daily pay or average daily pay, but would not be entitled to time and a half or an alternative holiday
- no sick or bereavement leave would be deducted.
What paid and unpaid leave is available and when does it start
Parental leave includes the following types of unpaid leave (some of which can be shared with your spouse/partner if they are also eligible).
- Maternity leave of 14 continuous weeks may start up to six weeks before the expected date of birth or adoption. If you plan to take maternity leave, you must write to your employer at least three months before your expected date of birth.In certain cases maternity leave can start earlier. Your doctor or midwife can direct you to start your leave earlier if they believe it is necessary for the health of you or your baby. Your employer can also direct you to start maternity leave early if you cannot continue to do your job safely or cannot perform your job adequately. If your doctor or employer directs you to start your maternity leave early, you have the right to take eight weeks maternity leave after the expected date of birth, and your maternity leave is extended to allow that. Special rules apply in this case – contact the Department of Labour on 0800 20 90 20 during business hours for further details.If you and your employer agree, you can start maternity leave at any other time before your baby is due.
- Special leave of up to 10 days can be taken by a mother before maternity leave for reasons connected with pregnancy (e.g. antenatal checks).
- Partner’s/paternity leave (where the spouse/partner is an employee) of either one week (for a spouse/partner with six months eligible service), or two weeks (for a spouse/partner with 12 months eligible service). Partner’s/paternity leave can be extended in certain circumstances, if parental leave payments are transferred from a mother to an eligible spouse/partner. Partner’s/paternity leave is additional to the period of maternity and extended leave.Partner’s/paternity leave can be taken in the period between 21 days before the expected date of delivery (or date you assume the care of a child with a view to adoption) and 21 days after the actual date of birth or the date you have assumed the care of a child with a view to adoption. If you and your employer agree, you can start partner’s/paternity leave at any other time.
- Extended leave of up to 52 weeks is available for employees with 12 months eligible service. It can be up to 52 continuous weeks, less any maternity leave taken, and is available in the 12 months after birth, or date the employee assumes the care of a child they intend to adopt. Extended leave may be shared by both eligible parents, but the total leave taken must not be more than 52 weeks (including maternity leave and paid parental leave). However, the one or two weeks partner’s/paternity leave entitlement is additional to this 52 week period. Both spouses/partners can take their leave at the same time or they can take it one after the other.Extended leave can start any time after the end of your maternity or partner’s/paternity leave.Each kind of leave must be taken in one continuous period. You can finish your maternity or paternity leave, go back to work, and then take extended leave later. However, the right to extended leave ends when the child is one year old, or one year after you have assumed the care of a child you intend to adopt.If you and your employer agree, you can start extended leave at any other time.
- Paid parental leave is available to female employees who give birth to a child, or to either parent where a couple has assumed the care of a child under six they intend to jointly adopt. You may transfer all or part of your paid parental leave to your spouse/partner as long as they are also eligible.If you meet either the six or 12 month eligibility criteria, you are entitled to paid parental leave for 14 weeks. To receive it, you must apply to your employer for parental leave, then apply to Inland Revenue for parental leave payments. This paid leave must be taken at the same time as any unpaid leave you take.The maximum level of payment is currently $458.82 per week before tax. You are entitled to either your gross weekly rate of pay (your pay before tax) or $458.82, whichever is lower.The payment period begins when your parental leave begins – that is, when you start your maternity, partner’s/paternity, or extended leave.
When you apply for paid leave you can choose when your payment commences. It continues until the 14 weeks are complete. However, it may stop earlier if you:- Transfer the payment, or part of the payment, to your spouse/partner
- Return to work before the end of the paid parental leave period
- Resign from your job
- Are employed on a fixed-term agreement that expires during the paid parental leave period.
Your payments will stop if you return to work for any time during the parental leave period.
Some employment agreements include parental leave provisions. You may have a choice of parental leave provisions if your employment agreement has provisions that are as favourable as, or more favourable than, those provided by law. Your employment agreement cannot change your eligibility for the government’s parental leave payments, and you can receive additional payments through your employment agreement.
You can take parental leave multiple times, as long as six months elapse between the date you returned to work and the expected date of birth of the subsequent child. You must also meet the eligibility requirements each time.
