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New Holidays Act wide open to abuse

New Holidays Act wide open to abuse

The new Holidays Act due for enforcement on April 1st will allow widespread abuse of its bereavement leave provisions, the Employers & Manufacturers Association (Northern) says.

Both the Prime Minister and Labour Minister have stated that the new Act won't give special treatment to Maori while Opposition Leader Dr Brash has said it will.

Labour Minister Margaret Wilson said "there is no such thing as unlimited bereavement leave under the new Holidays Act ..." but an analysis by EMA Northern of the Act shows there is.

"Bereavement leave entitlements under the new Holidays Act will only be limited by the number of deaths each year, about 28,000," said EMA Northern's Manager of Employment Relations, Peter Tritt.

"While bereavement leave at present is limited to a maximum of five days a year for each employee, from April 1st the new Act provides for two bereavement leave entitlements that are both uncapped.

"All employees will have the two bereavement entitlements. An employer must allow bereavement leave of up to three days on the death of their spouse, parent, child, brother or sister, grandparent, grandchild or spouse's parent.

"An employer must also allow bereavement leave of one day for the death of any other person if the employer accepts the employee has a genuine bereavement.

"In deciding whether a bereavement is genuine the employer must consider relevant factors, including the closeness of association with the deceased, whether the employee has any significant responsibilities for funeral arrangements, and any 'cultural responsibilities' that the employee has in relation to the death.

"The present Holidays Act includes no reference to 'cultural responsibilities.' But the advisory group that Labour Minister Wilson established in 2000 to advise her on new holiday legislation was instructed to ask: 'Should the entitlement to special leave be split up into types of leave such as sick leave, domestic leave and/or bereavement leave (or tangihanga leave) with separate entitlements for each?'

"In September 2001 the group's second report repeated the question and the CTU requested a requirement to consider 'cultural considerations' and for this to be called tangihanga leave. The Government simply included 'cultural considerations' leaving it to employers to sort out whatever that may mean.

"In dealing with the new entitlement employers cannot afford simply to not have a policy granting leave under it. Every employer has a statutory obligation to consider all leave requests before deciding whether to accept them.

"They can take one of two approaches. They could deal with all leave requests on an ad hoc basis. If they do this they need to know each decision from then on has to be made on the same basis because employees must not be treated inconsistently. So how do you say 'yes' to one pall-bearer and 'no' to another?

"Alternatively employers could develop a policy on how they will grant the leave. But what 'cultures' should they consider? What 'funeral responsibilities' should they recognise? What 'closeness of association' should they accept? The possibilities are endless.

"The Government should have confined bereavement leave to the death of close relatives. If it wanted to recognise tangi leave, through the culturally neutral term 'cultural responsibility,' it should at least have capped the time off work permitted under it."


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