BAPS Leave - NZ

About

BAPS Leave = Bereavement, Alternative, Public Holiday & Sick Leave - it is a complicated area of employment law in New Zealand is governed by the The Holidays Act 2003. We do not provide any specific advice in these matters and strongly suggest that you seek independent expert advice when considering leave compliance matters for your business.

Alternative Holiday Pay

An alternative holiday day is also known as a lieu day or day off on lieu. If an employee has missed out on having a day off work on a public holiday, an alternative holiday gives them a day off at another time.

An employee gets an alternative holiday if they work on a public holiday that would otherwise be a working day for them.

The employee can take the alternative holiday:

• on a day agreed with their employer, and
• on a day that would otherwise be a working day for them, and
• on a day which isn’t a public holiday, and for a whole working day (even if they didn’t work a whole day on the public holiday).
  • For example, if an employee normally works eight hours a day, but on the public holiday, which would normally be a working day for them, they only worked for two hours, they would get paid for two hours at time and a half, and they also would get an alternative holiday (and would be paid for eight hours on the alternative day). However, if the public holiday would not normally be a working day for them, they would get paid for two hours at time and a half, but would not get an alternative holiday.

If the employer and employee can’t agree when the employee can take the alternative holiday, the employer will choose the day (but it must be reasonable) and will give the employee at least 14 days’ notice of the date they have to take the day.

Rate of Pay while taking an alternative holiday

Unless their employment agreement says they get paid more, an employee receives their relevant daily pay or average daily pay for the whole day taken as the alternative holiday. For example, if an employee gets an alternative holiday for working 3 hours on Easter Monday and they take the alternative holiday on the following Friday (and they would usually work eight hours on a Friday), they will be paid the amount that they would have received had they worked on that particular Friday, ie they would receive pay for eight hours.

An employer should try to calculate the employee’s relevant daily pay in the first instance but can use average daily pay if it isn’t possible or practicable to determine the relevant daily pay, or if the employee’s daily pay varies within the pay period when the alternative holiday is taken.

Relevant daily pay and average daily pay has information on how public holidays, alternative holidays, bereavement and sick leave payments are calculated.

Alternative holidays remaining at the end of employment

If an employee has got an alternative holiday they haven’t taken when they leave their employment with their employer, they are paid out for the alternative holiday at the rate of their relevant daily pay or average daily pay.

When an employee doesn’t get an alternative holiday

Employees don’t get an alternative holiday if they:

• work on a public holiday and that day would not otherwise be a working day for them, or

are on call on a public holiday but are not required to restrict activities, and are not called out (so don’t work), or

• are only employed to work on public holidays (eg an employee who is only employed to work at the racetrack for the Waitangi Day meeting), there is no entitlement to an alternative holiday, but the employee must still be paid at least time and a half for the hours they work on the public holiday.

Alternative holiday may be paid out

If an employee doesn’t take an alternative holiday within 12 months of becoming entitled to it, the employee and employer can agree for the alternative holiday to be paid out. The payment must be agreed by the employer and employee and must be made as soon as practicable once the agreement has been made.

Sick Leave

In New Zealand all employees are entitled to sick leave if:

• they have six months’ current continuous employment with the same employer, or

• they have worked for the employer for six months for:
  • an average of 10 hours per week, and
  • at least one hour in every week or 40 hours in every month.

For each 12-month period after meeting the above, each employee gets at least five days’ sick leave. If in any year the employee doesn’t meet the criteria, then they don’t get any new sick leave entitlement, but can use their sick leave balance which may have carried over. An employee may re-qualify for sick leave as soon as they meet the criteria.

Sick leave entitlements are not pro-rated in any way. For example, even if a part-time employee only works three days a week, they still get five days’ sick leave a year and can accumulate up to 20 sick days a year.