As many New Zealanders enjoy a day off work to celebrate Waitangi Day today, employment lawyers Jennifer Mills and Christie Hall chart progress of the plans to make sure it provides a holiday every year.
Plans to “Mondayise” Waitangi Day, to ensure it provides a day off for workers every year, will soon be debated again as the proposal takes its next steps before parliament.
The Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill or, as it is more commonly known, the “Mondayisation Bill”, is set down for its second reading in the next few months.
The Bill proposes an amendment to the Holidays Act 2003 to allow for the Mondayisation of Waitangi and Anzac Day when they do not fall on a working day, as Waitangi Day has this year.
Waitangi Day next falls on a weekend in 2016.
What’s being proposed?
The Bill follows the same format as the provisions which Mondayise Christmas Day, Boxing Day, New Year’s Day and January 2.
This means that the dates on which Waitangi Day and Anzac Day are celebrated will remain. For example, parades and other commemorative celebrations will continue to be held on February 6 and April 25 each year.
However, if Waitangi Day or Anzac Day fall on a Saturday or Sunday, and that day is not otherwise a working day for an employee, then the public holiday will be treated as falling on the following Monday for that employee. For those who work weekends, the public holiday will continue to be recognised on the actual day.
If an employee works on a day that is designated as a public holiday for them (either the weekend day or the Monday, depending on their normal working days), the employee will receive time and a half for the hours worked, and become entitled to an alternative holiday.
Interesting law-making issues under MMP
This Bill has received significant media attention, in part because it is an issue affecting a large number of New Zealanders, but also because it raises interesting issues regarding the passing of legislation in an MMP environment.
As a Members’ Bill, it would not normally expect to see the light of day without a conscience vote or the support of the governing party.
It is widely known that the National Party is unsupportive of the Bill. In general, the key reason for this is the perceived monetary cost should employers be required to recognise the public holiday on a different day.
While some may be sceptical of the figures, National considers it could cost up to $200 million when Waitangi or Anzac Days fall on a weekend.
However, given that National is leading a minority government (with 59 MPs out of a total of 120), then it is possible for Labour-initiated legislation to pass into law in spite of objections from National, provided it gets the support of other minority parties.
Bill’s progress
This state of affairs saw the Bill pass its first reading on July 25 last year, after which time it was handed to the Transport and Industrial Relations Select Committee for consideration.
The committee returned its report to Parliament in December and, essentially, it is in agreement with National. This is not surprising, given the committee's National majority. It found that “the potential of the Bill for negative effects outweighs its positive potential”.
Outside of this general comment, it has provided very few reasons for why it holds this view.
Should the Bill proceed, the committee has proposed several key amendments.
First, it proposes that the Bill should have a start date of January 1 next year, meaning the first affected public holiday will be Anzac Day, 2015, giving the public one year to prepare.
In addition, the select committee has suggested that a further clause be inserted into the Bill clarifying that an employee is only entitled to one public holiday for Waitangi Day, and one for Anzac Day as the Bill was not particularly clear in this respect.
Notwithstanding the views of the select committee, will the Bill be passed?
Given the strong support from the remaining political parties, it is likely that the Bill will be passed this year. It has the support of Labour, the Greens, United Future and the Maori Party, which would give them a voting majority.
These parties are of the view that the select committee was advised in detail regarding the costs which may arise from the implementation of the Bill, but was not advised fully on the off-setting benefits.
They say “Mondayisation” of public holidays is not unknown in New Zealand, is common in other countries, such as Australia, and allows employees to receive their full complement of 11 public holidays every year.
The public also appears to agree the two holidays should be Mondayised.
In a recent NBR ONLINE opinion poll, 71% of respondents answered the question “should public holidays be “Mondayised”?” in the affirmative.
This is an issue which we will clearly hear more about in the coming months as the Bill is set down for its second reading.
Jennifer Mills is a partner and Christie Hall is a senior associate at Minter Ellison Rudd Watts
