Jon Hyman has posed an interesting question this week on his blog – if you could press a button and instantly vaporise one employment law or rule, what would it be?
I’m sure that everyone has a personal bugbear. A pet hate that interferes in their daily life – and that you would love to see gone. If you do, email me – and I will take a straw poll!
For me, however, the answer is easy. I would vaporise the Holidays Act.
The Holidays Act is no picnic to interpret
This piece of legislation is, without doubt, the most difficult thing to interpret – and the most problematic to apply. It should be something that enshrines rights and obligations – but instead, more often than not, it results in confusion and acrimony.
I would get rid of the whole thing – and start again.
Why the Holidays Act doesn’t work
There are two reasons why the Holidays Act doesn’t work anymore (at least, in my opinion).
The first is that it is, in essence, anachronistic legislation. It was originally drafted in a period where most New Zealand workers toiled from 9 to 5, and from Monday to Friday. That is, of course, no longer the norm. Over 60% of us do not adhere to that model – and the Holidays Act simply does not stretch readily to accommodate all of the different working arrangements that now form part of our society.
The second reason is social. Public holidays used to have real meaning. Waitangi Day (briefly called “New Zealand Day”) was a celebration of the birth of our nation. Easter and Christmas holidays had a religious significance – that was often observed with special trips to church. Queen’s Birthday was a celebration of the monarch.
It is arguable that few of these holidays holds the symbolic or religious significance for us that they may have done years ago. In fact, I would venture to say that for most of us, these are just days off work (that are looked forward to for their late sleep-ins and time off). Instead of observing the religious significance of Easter, most of us are prone to complaining about its seemingly inexplicable constraints upon trading hours and liquor licensing laws.
So, what would I do about the holidays legislation?
Holidays by negotiation & mutual consent
Here’s a suggestion. Let’s say that what we want to do is ensure that everybody has at least 20 working days off a year for annual holidays – and a further 11 working days off for public holidays. Let’s just round that up and say that everyone is entitled to 31 working days off each year.
As to when you can take those holidays, you have to agree with your employer – and the employer’s consent cannot be unreasonably withheld.
Importantly, however, the employer may announce a “close down” at different times in the year – provided it gives workers at least three months’ notice. During those periods employees have to use their days off.
It is admittedly a bit blunt. It may even be a bit insensitive. But – as a lawyer (and probably also as an HR professional) – it would be a lot easier to administer.
What do you think?