Holidays Act Remediation

Holidays Act Issue

The Holidays Act 2003 is a complex piece of legislation with varying calculations and entitlements for different leave types.

As a result, many New Zealand employers have found it challenging to apply the legislation correctly when calculating holidays and other forms of leave, especially for employees working shift work, variable days and hours, or with flexible work patterns.

This has resulted in some OCS New Zealand past and present employees being unintentionally underpaid, or even overpaid in some instances. The Holidays Act Remediation programme seeks to rectify this issue.

What is OCS doing?

OCS New Zealand has been working with MBIE’s Labour Inspectorate who have conducted a Holiday Act audit of our payroll systems.

The audit has picked up some incorrect calculations for annual holidays and public holidays, primarily related to waged staff working variable hours. We’re currently working with the Labour Inspectorate to correct these issues quickly and efficiently.

As a priority, we’re working closely with our team members, past and present, to keep everyone fully informed. We have been in contact with the E tū union to keep them informed too, as well as seeking their assistance to contact past employees.

We’ve engaged Grant Thornton, a specialist accountancy firm, to assist with identifying and correcting the issues. They have had their methodology checked by the Labour Inspectorate, so we have full confidence that the correct calculations will be made. We’re also working with our payroll provider to make technical changes so that the identified issues don’t reoccur.

What we’ve done so far

  • In (late) 2017 we voluntarily signed up to a legally binding agreement with the Labour Inspector to address our non-compliance with the Holidays Act 2003
  • In 2018 we carried out an in-depth review to identify the issues that lead to non-compliance with the Act
  • In 2019 we agreed on an approach to remedy the non-compliance
  • In 2020 we:
    • Engaged specialist third party consultants (Grant Thornton) to help calculate the extent of our historic pay and entitlement errors (the COVID-19 lockdowns then interrupted progress); and
    • Worked with the Labour Inspector on samples of Holidays Act 2003 calculations to ensure our approach was correct
  • In 2021 we:
    • Will make our first remediation payments to current employees
    • Installed new payroll systems/software to ensure compliance from [date]
    • Will contact and remediate former employees
    • Will test our payroll every three months for compliance.

How to find out if I’m owed a remediation payment

If you were employed by OCS between 14 December 2010 and 26 April 2021 you will need to lodge a claim form, which can be lodged immediately online. The following documentation is required to be uploaded to complete your claim:

  • Proof of identity: this can be either a copy of your birth certificate, passport, certificate of citizenship, immigration NZ visa, driver’s license or HANX 18+ card. Please note, if your identity document has two sides, both sides must be provided.

The claim form and lodging of these documents can be completed electronically via the online claim form. Otherwise, a claim can be lodged by email by downloading the PDF form, printing it, completing it and scanning or photographing the completed form along with your above-supporting documents to Holidays.Act@ocs.co.nz.

Frequently 
Asked Questions

  • The Holidays Act 2003 covers pay and entitlements surrounding all types of leave and public holidays for employees in New Zealand. While it’s easy to follow for those working standard hours, the Act has proved complicated for employees on shift work, variable days and hours, or with flexible work patterns.

  • This issue affects some individuals employed by OCS between 14 December 2010 and 26 April 2021.

    It primarily affects colleagues who worked variable and unpredictable work patterns or above their contracted hours. However, some former OCS colleagues who worked regular hours may also be affected. The recalculation of leave payments also affects colleagues who took annual leave in advance after returning from Parental Leave (prior to 26 April 2021).

    There are approximately 12,000 OCS New Zealand colleagues, both past and present, affected by the incorrect calculation between 14 December 2010 and 26 April 2021. The high number of people affected directly relates to the nature of our business, which attracts many casual, short-term and part-time workers.

    Affected colleagues (past and present) were sent a letter from us with information about their remediation payment and how they can have it paid. Not all colleagues who worked during this period are affected, as their holiday pay was calculated at the correct or higher rate.

    For past colleagues, we used the last known contact details we had for them when they left the business. If you believe you’re eligible and haven’t been contacted, please complete the online claim form.

  • We have written to former colleagues who are owed a payment. The letter contained information about their payment and how to claim it. OCS used the last contact details we had on record for these people when they left OCS.

    Not all colleagues are affected, as their holiday pay and other leave may have been calculated correctly, or they have been overpaid. We did not write to these colleagues and we will not be seeking to recover overpayments.

  • The remediation covers the period between 14 December 2010 and 26 April 2021.

  • The amount of your back payment will vary based on your working patterns and leave patterns while at OCS. Each payment will be individually calculated.

    If you believe you’re eligible and haven’t been contacted, please complete the online claim form.

  • Current colleagues – Payments to affected current colleagues up to 26 April 2021 were made from 13 October 2021. The Payroll team will make ongoing payments until system compliance is achieved.

    Past colleagues – Remediation payments for past colleagues will be paid as we make contact with impacted people and have collected the required information from them. Depending on claim volumes it may take several weeks to process your payment.

  • Some colleagues have been overpaid but we will not be seeking to recover overpayments.

  • Interest is not paid on remediation payments.

  • Income tax (PAYE) will be deducted from remediation payments in accordance with the tax code you provide to us.

    We encourage you to contact the relevant organisation such as the Inland Revenue Department for advice about whether your remediation payment affects any agreement you have with them about your current earnings, benefits, child support or any other matters.

    The Inland Revenue website has useful information on the tax treatment of lump-sum payments, such as an arrears payment.

    You can also telephone the IRD on 0800 227 774.

  • KiwiSaver contributions will automatically be deducted at the time of payment and associated employer contributions will be matched appropriately.

    Remediation payments will also be subject to other applicable deductions in place at the time of payment such as student loan repayments.

  • Current colleagues who have been affected don’t need to provide any documentation as we already have your current bank account, KiwiSaver and tax details.

    Past colleagues will need to lodge a claim form, which can be lodged immediately online. The following documentation is required to be uploaded to complete your claim:

    • Proof of identity: this can be either a copy of your birth certificate, passport, certificate of citizenship, immigration NZ visa, driver’s license or HANX 18+ card. Please note, if your identity document has two sides, both sides must be provided.

    The claim form and lodging of these documents can be completed electronically via the online claim form. Otherwise, a claim can be lodged by email by downloading the PDF form, printing it, completing it and scanning or photographing the completed form along with your above-supporting documents to Holidays.Act@ocs.co.nz.

    Following confirmation of your identity you will be provided with further information and asked to provide additional information, including:

    • Your tax code and IRD number: a signed Tax Code Declaration Form (IR330); and
    • If contributing to KiwiSaver, a signed IRD KiwiSaver Deduction Form (KS2).

  • If you’re eligible for a payment, we’ll contact you via email or letter using the details we currently hold. This letter will request specific documentation to be returned to us including:

    • Your tax code and IRD number: a signed Tax Code Declaration Form (IR330); and
    • If contributing to KiwiSaver, a signed IRD KiwiSaver Deduction Form (KS2).

    Once we receive acknowledgement of our letter and verification back from you, we will verify your details and payment will be made to your nominated bank account.

    In line with section 6, 7 and 8 of the Unclaimed Monies Act 1971, any monies which haven’t been claimed will be passed onto the Inland Revenue Department (IRD).

    If you haven’t heard from us and believe you may have been affected, please complete the online claim form and we’ll be in touch.

  • An electronic payslip with the details of your payment can be requested once you have received the payment from our Holidays Act team. You can request this by emailing Holidays.Act@ocs.co.nz.

  • To check if a deceased person’s estate or someone you act for is due a remediation payment, please email us at Holidays.Act@ocs.co.nz with your details and those of the person you’re acting for. We will need a copy of your authority to act before we provide information about any payment that may be due.

  • If you have any questions, you can send us an email at Holidays.Act@ocs.co.nz, or you can leave a voice message by calling 0800 627 630 (please leave your name and contact details in this instance). If you’re an E tū member you can also contact them for information.

  • We appreciate the implications of this issue and understand the importance of ensuring it doesn’t happen again.

    As well as remediating any historical holiday pay entitlements, a specialist team was engaged to rectify issues with our payroll system to ensure it’s fully compliant with the Holidays Act 2003 and that our people are paid correctly.