Q: Just looking for some clarity as to what NZPPA currently recommends/advises in respect to the period of reference for determining if a particular day would be considered an otherwise working day when an employee has no fixed working pattern?
I know there is no one size fits all approach, and section 12 of the Holiday’s Act requires a more holistic view depending on the individual circumstances of the employee. However, as a rule, I have generally followed the advice laid out in Wendco(NZ) Limited vs Labour Inspector 2017, namely that ‘Where an employee has worked for three months or more, I consider it would be sensible to assess the period of at least three months, or their full work history if they worked for less than three months’ and used a 50% or more test over this period for this.
I am aware a lot of organisation use a 4, 6 or 8 week reference period instead. Was just therefore looking as to what NZPPA’s current recommendation is?
A: As a starting point it would be what we call the 4-week rule, if that does not fit the work pattern then base it on the employees roster (8-week rotating roster, so you look at the last 8 weeks). It could be based on a season; I have had Labour Inspector stating to NZPPA members to look back 6 months.
The best way is to look at what is fair and clear to see a pattern and get agreement from employees that this is the period to be used to determine if a day is an otherwise working day.