Annual Holidays Act 1944 (NSW)

Annual Holidays Act 1944 No 31

An Act to provide for annual holidays for workers; to amend the Industrial Arbitration Act 1940 and certain other Acts; and for purposes connected therewith.

1 Name of Act, commencement and construction (1) This Act may be cited as the Annual Holidays Act 1944. (2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. (3) This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act, and so as not to exceed the legislative power of the State to the intent that where any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected.

2 Interpretation (1) In this Act, unless the context otherwise indicates or requires— Agreement means an enterprise agreement within the meaning of the Industrial Relations Act 1996. Award means an award within the meaning of the Industrial Relations Act 1996. Employer means any person employing any worker or workers and includes the Crown. Inspector means an inspector appointed under the Industrial Relations Act 1996. Ordinary pay, in relation to any worker, means remuneration for the worker's normal weekly number of hours of work calculated at the ordinary time rate of pay; and, where the worker is provided with board or lodging by his or her employer, includes the cash value of that board or lodging. Week, in relation to any worker, means the worker's ordinary working week. Worker means person employed, whether on salary or wages or piecework rates, or as a member of a butty-gang, and the fact that a person is working under a contract for labour only, or substantially for labour only, or as lessee of any tools or other implements of production, or as an outworker, or is working as a salesperson, canvasser, collector, commercial traveller, insurance agent, or in any other capacity in which the person is paid wholly or partly by commission, shall not in itself prevent such person being held to be a worker. (2) For the purposes of the definition of the term ordinary pay in subsection (1)— (a) the term ordinary time rate of pay in the case of a worker who is remunerated in relation to an ordinary time rate of pay fixed by the terms of the worker's employment means the time rate of pay so fixed for the worker's work under the terms of the worker's employment, including shift allowances relating to ordinary time and weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holidays, but does not include any other amount payable to the worker in respect of shift work, overtime or penalty rates, and where two or more time rates of pay are so fixed means the higher or highest of those rates, (a1) where a worker is remunerated otherwise than in relation to an ordinary time rate of pay so fixed, or partly in relation to an ordinary time rate of pay so fixed and partly in relation to any other manner, or where no ordinary time rate of pay is so fixed for a worker's work under the terms of the worker's employment, the worker's ordinary pay shall be deemed to be the average weekly wage earned by the worker during the period actually worked by the worker during the period of twelve months immediately preceding the annual holiday or, as the case may be, during the period of employment in respect of which a right to payment under section 4 (3) or under section 4A accrues. For the purposes of this paragraph the average weekly wage earned by a worker shall be the average of the amounts received by the worker each week under the terms of the worker's employment including shift allowances relating to ordinary time and weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holiday, and excluding any other amount payable to the worker in respect of shift work, overtime or penalty rates, (a2) where during the period of twelve months immediately preceding the annual holiday or, as the case may be, during the period of employment in respect of which a right to payment under section 4 (3) or under section 4A accrues the worker has received under the terms of the worker's employment, any amount under any bonus, incentive or other similar scheme (other than any amount taken into consideration in assessing an average weekly wage in terms of paragraph (a1)) the worker's ordinary pay shall be increased by a further sum namely the sum which the worker would have received each week in respect of such bonus, incentive or other similar scheme had such amount been paid by equal weekly payments throughout that period, (b) where no normal weekly number of hours is fixed for a worker under the terms of the worker's employment, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the worker during the applicable period referred to in paragraph (a1), (c) the cash value of any board or lodging provided for a worker shall be deemed to be its cash value as fixed by or under the terms of the worker's employment or, if it is not so fixed, shall be computed at the rate of three dollars, or such greater sum as may be prescribed in lieu thereof, a week for board and one dollar, or such greater sum as may be prescribed in lieu thereof, a week for lodging. (3) Notwithstanding anything contained in subsection (2) (a1) or (a2), for the purposes of the definition of the term ordinary pay in subsection (1), where a worker is remunerated partly in relation to an ordinary time rate of pay fixed by the terms of the worker's employment and partly in relation to a bonus, incentive or other similar scheme, the worker's ordinary pay shall be deemed to be the sum of— (a) the worker's weekly remuneration at the ordinary time rate of pay so fixed at the commencement of the annual holiday or, as the case may be, at the end of the period of employment in respect of which a right to payment under section 4 (3) or section 4A, accrues, (b) the average of the amounts received by the worker each week in respect of the bonus, incentive or other similar scheme— (i) during the period actually worked by the worker during the twelve months immediately preceding the commencement of the worker's annual holiday, or (ii) during the period of employment in respect of which a right to payment under section 4 (3) or section 4A accrues, as the case may be, and (c) shift allowances relating to ordinary time and weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holiday, but excluding any other amounts paid to the worker in respect of shift work, overtime or penalty rates. (4) For the purposes of subsections (2) (a1), (2) (b) and (3), in computing the period actually worked by a worker no regard shall be had to any period during which, on account of illness or injury, the worker was temporarily assigned to duties or work entitling the worker to payment of wages lower than the wages the worker would have received had the worker not been assigned to those duties or that work on that account, unless the worker was assigned to those duties or that work during the whole of the period actually worked by the worker. (5) Notwithstanding the provisions of subsection (2) (a), (2) (a1) or (3), where by any award or agreement a worker is entitled to shift allowances relating to ordinary time or weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holiday or to an annual holiday loading, whichever is the greater, the ordinary time rate of pay or the ordinary pay, as the case may be, of that worker shall not, in respect of any annual holiday to which the worker is entitled under this Act, include those allowances and penalties. (6) Despite anything to the contrary in this section, the ordinary pay of a worker is not to include or be increased by the amounts paid under any bonus, incentive or other similar scheme if the annual amount of the worker's ordinary pay (excluding any amounts so paid) exceeds the amount prescribed by the regulations for the purposes of this subsection.