Recommendation

The Transport and Industrial Relations Committee has examined the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill and recommends that it not be passed. Labour and Green members did not support this recommendation, and have supplied minority views. If the House decides, however, that the bill should proceed, the committee recommends that it adopt the amendments shown.

Introduction

The Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill is a member’s bill in the name of Dr David Clark. The bill seeks to amend the Holidays Act 2003; it is intended to ensure that New Zealanders who work a standard five-day week receive a working day off every year for each of the public holidays listed in the Act. Some public holidays, such as Good Friday, are always observed on a particular day of the week; others, such as Christmas Day and Boxing Day, are observed on a particular date, but, if that date falls on a Saturday or Sunday, the public holiday is treated for employees who do not normally work on those days as falling on the following Monday (or Tuesday as the case may be). Waitangi Day and ANZAC Day are not currently subject to such “Mondayisation”.

The bill would require that when Waitangi Day and ANZAC Day fell on a Saturday or Sunday, employees who would not usually work on the observed day would receive a public holiday on the following Monday. Employees who would normally work on the observed day would receive their public holiday on that day.

Most of us consider that the potential of the bill for negative effects outweighs its positive potential. We all agree, however, that if the bill is passed, it should be passed with the amendments discussed below.

This commentary covers the major amendments that we recommend, including consequential amendments to a wide range of other legislation. It does not discuss minor, technical, or other consequential amendments.

Commencement

We recommend amending clause 2 to specify 1 January 2014 as the commencement date. We consider that public access to legislation is improved by the inclusion of a specific commencement date. The first day that would be affected by this legislation is ANZAC Day in 2015; the commencement date we recommend would allow a full year for the public to prepare for the new legislation, for example by revising contracts and other legal instruments that include definitions of “working day” or “business day”.

Transfer of Waitangi Day and ANZAC Day

We recommend amending clause 5, which would insert new section 45A (new section 44B in the bill as introduced), by amending new subsection 45A(2), to make it clear that an employee would not be entitled to more than one public holiday for Waitangi Day or for ANZAC Day.

Consequential amendments to other legislation

We recommend inserting new clause 6 to amend the Anzac Day Act 1966, new clause 7 to amend the Waitangi Day Act 1976, and new clause 8 to give effect to new schedules 1, 2, and 3. New schedules 1 and 2 would amend various definitions of “working day”, and “business day” respectively, and new schedule 3 would specify other consequential amendments.

We note that consequential amendments to various Court Rules¹ would also be required; by convention, such amendments are made by Order in Council after consultation with the Rules Committee.

New Zealand Labour Party minority view

This bill seeks to ensure New Zealanders receive their legislated 11 public holidays in every year, rather than only five of every seven years.

It also recognises the increasing importance of both Waitangi Day and ANZAC Day to New Zealanders’ sense of history and identity.

The Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill is drafted to ensure no-one misses out. It brings the celebration of these days of growing significance to our history and identity into line with practice in Australia, and with the practice for other holidays in New Zealand.

Labour  does  not  accept  the  view  presented  by  a  minority of submitters that Mondayising in some way diminishes Waitangi Day or ANZAC Day. We believe quite the opposite. In the case of ANZAC Day, Australian observers report a growing attendance at ANZAC Day dawn services. It makes sense. People are more likely to get up for dawn services on a Sunday morning when they know they can have a lie-in and time with the family on the Monday that follows. We expect the same will happen here.

The Council of Trade Unions, which represents more people than all of the other submitters combined, spoke in favour of the legislation.

Views amongst employer groups were mixed. Groups who submitted against introducing the holidays focused on the increased cost to employers of two additional days’ holiday once every seven years. On the other hand, those who submitted on behalf of employers in the tourism sector focused on the increased profits for their sector that would result from the additional holidays. The only quantitative research done found that 87 percent of over 1,000 small or medium sized business owners surveyed are either actively in support or neutral towards the Mondayising of Waitangi Day and ANZAC Day.

Submissions noted that Mondayising is what we usually do in New Zealand. The majority of public holidays in New Zealand are already observed on a Monday (for example Labour Day, Easter Monday, and Queen’s Birthday) or are Mondayised (for example Christmas and New Year holidays).

Mondayising is also normal practice in similar countries. As noted above, it is common practice in Australia. When ANZAC Day falls on a weekend, the following week day is considered a public holiday in Western Australia, Victoria, Australian Capital Territory, New South Wales, South Australia, Queensland, and Northern Territory.

A similar pattern emerges for Australia’s national day, Australia Day. All Australian States and Territories recognise an additional public holiday on the following work day, with the exception of New South Wales who only proceed on that basis if Australia Day falls on a Sunday.

Information shared with the committee shows that advice provided to Government by officials has focused on counting the costs of the legislative change without considering the offsetting benefits. For this reason, Government officials note that their cost estimates are “likely to be overstated”.

As officials have pointed out, the calculations they supply for costing the proposal fail to account for a range of ameliorating factors: employment and hours worked by self-employed people (who are not subject to the Holiday’s Act) are included in calculations, while productivity gains from the benefits of having rested workers and extra benefits from increased domestic tourism are not. Also, no account has been taken of the fact that employers can make changes to the way they operate their businesses and who works on which days, further reducing costs.

Labour contends for reasons cited above that the Government’s cost estimate (which amounts to 13 cents per worker per day) is overstated. But even if that were the cost, the greater recognition for the days and the benefits accruing to workers make it worthwhile passing the legislation.

The bill looks likely to pass; the Labour Party thanks the Green Party, New Zealand First, the Māori Party, United Future, and the Mana Party who have all pledged their support.

Labour is surprised at reports that the National Party intends to oppose this bill. The increasing significance of these days to New Zealanders and the importance of time with family, friends, and wider community make a compelling argument in its favour. So too does quantitative evidence that employers favour the bill, perhaps in part because it ensures simpler and more consistent accounting provisions for holidays. Most employers are fair-minded like their employees and can see the benefits of Mondayising far outweigh the costs.

Green Party minority view

The Green Party supports good work-life balance for all New Zealanders and we believe this bill will enable workers and their families to enjoy the full entitlement under the Holidays Act of 11 public holidays per year every year. Under the existing Holidays Act in two out of every seven years, public holidays are reduced to nine days a year because Waitangi Day and ANZAC Day are celebrated on a specific calendar day, and when either of those days falls on a weekend, the holiday is not transferred to a weekday.

Four of the other 11 public holidays also occur on the day on which they fall (Christmas Day, Boxing Day, New Year’s Day and the day after) and when these days fall on a weekend, the law provides for transfer to a week day. This is commonly known as “Mondayisation”.

The Green Party maintains that the difference in treatment between Waitangi and ANZAC days and Christmas and Boxing days is an anomaly, and we reject the notion put by some submitters that it would “cheapen” the commemorations of either day, as we have seen no evidence that this has resulted from the Mondayisation of Christmas, for example.

We also note that Australia already transfers ANZAC Day to the following Monday when it falls on a weekend and the day’s commemorations are still held on the 25th of April. We note the New Zealand Council of Trade Union submission, which includes the observation that even with Mondayisation, ANZAC Day events in Australia are well attended.

The Green Party supports the submission from the Tourism Industry Association of New Zealand, which noted that the July 2012 Mind Your Own Business survey of mostly small businesses showed only 13 percent opposition to the Mondayisation of Waitangi and ANZAC Day, with over 50 percent supporting the concept. We agree with the Tourism Industry Association that the Mondayisation of Waitangi Day and ANZAC Day offers the opportunity to increase domestic tourism, and with their assertion that those economic benefits outweigh the small cost to employers. Employers already bear that cost when Waitangi Day and ANZAC Day occur on a weekday, and given that this will happen next in 2015 and 2016 and then not again until 2020 and 2021, they would certainly have ample time to prepare for it.

The Green Party agrees with the New Zealand Council of Trade Unions that New Zealanders work relatively long hours, and we believe that while our combined minimum annual leave and public holiday provisions are not the least generous in the OECD countries, we are lagging behind many European countries.

We support this bill and agree that if it is successful, there should be consequential amendments to other related legislation like the Anzac Day Act 1966 and the Waitangi Day Act 1976.