There has been some commentary recently around the gifting of annual leave from one work colleague to another. The particular case in point was an overseas employee who has used up all their annual leave caring for a terminally ill child. In this case work colleagues had banded together and gifted one day of their unused leave to their colleague.
France has recently embodied a law permitting this, but in NZ is this legal?
The short answer is that the Holidays Act is silent on this. In other words there is nothing to prevent an employee cashing up some (up to a week) of their annual leave and gifting the cash to their colleague. In this case it would be an arrangement outside the employment relationship.
We would suggest such arrangements would need to be done with the knowledge of the employer, who may choose to exercise a little more discretion to the employee who used all their entitlement. Such arrangements do create precedents and a cautious approach would need to be used to ensure a discrimination and/or disadvantage action didn’t follow.
Inevitably you would need to think about;
- What situations do qualify for permission to donate i.e. who defines what seriously ill is?
- How much leave entitlement must the person willing to donate retain to ensure they have left enough for themselves to use?
- What happens if the employees donating leave have a similar situation in the future themselves?
- Who would qualify… what happens if the employee is not that popular?
- What if you have someone on a low salary wanting to donate their leave to someone on a higher salary? This would be an increased cost to the business
- The real reason for leave is providing rest and relaxation to employees. Giving away leave may impact on this.
Another option is for the company to provide additional paid or unpaid leave but this would need to be done on an equitable basis due to the precedent it sets for other employees who may find themselves in this situation.
In the US this is already in place as voluntary ‘shared leave’ where the recipients and donors need to meet certain eligibility requirement and there is a push now for Australian legislation to match the French law.
Gifting annual leave is seen as an opportunity for people in the workplace to gather together to do something to help and it is very charitable in terms of social behaviour. If it was successfully implemented there may be benefits that extend from workers to the workplace including enhancing the company’s reputation possibly without very much cost.
However legislating the donation of leave is seen to be extremely progressive and in line with the developments in France to try and get the work life balance better along with working less hours per week.
Wonder whether this will gain any momentum in NZ?