New Zealand Legislation: Acts

9 Meaning of relevant daily pay

• (1) In this Act, unless the context otherwise requires, relevant daily pay, for the purposes of calculating payment for a public holiday, alternative holiday, sick leave, or bereavement leave,—

  • (a) means the amount of pay that the employee would have received had the employee worked on the day concerned; and

  • (b) includes—

    • (i) productivity or incentive-based payments (including commission) if those payments would have otherwise been received on the day concerned:

    • (ii) payments for overtime if those payments would have otherwise been received on the day concerned:

    • (iii) the cash value of any board or lodgings provided by the employer to the employee; but

  • (c) excludes any payment of any employer contribution to a superannuation scheme for the benefit of the employee.

  (2) To avoid doubt, if subsection (1)(a) is to be applied in the case of a public holiday, the amount of pay does not include any amount that would be added by virtue of section 50(1)(a) (which relates to the requirement to pay time and a half).

  (3) If it is not possible to determine an employee’s relevant daily pay under subsection (1), the pay must be calculated in accordance with the following formula:

  	a
  	b

  where—

  a

  is the employee’s gross earnings for—

  • (i) the 4 calendar weeks before the end of the pay period immediately before the calculation is made; or

  • (ii) if, the employee’s normal pay period is longer than 4 weeks, that pay period immediately before the calculation is made

  b

  is the number of whole or part days during which the employee earned those earnings in the 4 calendar weeks, or longer period (as the case may be) including any day on which the employee was on a paid holiday or paid leave; but excluding any other day on which the employee did not actually work.

  (4) However, an employment agreement may specify a special rate of relevant daily pay for the purpose of calculating payment for a public holiday, alternative holiday, sick leave, or bereavement leave if the rate is equal to, or greater than, what would otherwise be calculated under subsection (1) or subsection (3).

  Section 9(1)(b)(iii): amended (with effect on 17 May 2007), on 19 December 2007, by section 120 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 9(1)(c): added (with effect on 17 May 2007), on 19 December 2007, by section 120 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 9(2): amended, on 22 October 2004, by section 4 of the Holidays Amendment Act 2004 (2004 No 85).