Holidays Act Remediation

Like many employers in New Zealand, WSP completed a review of our interpretation of the Holidays Act 2003, (including prior to 14 October 2019 when we were Opus International Consultants Limited). As a result, it was identified that some leave payment calculations had previously been non-compliant with the Act. The general areas of non-compliance identified related to payment calculation for annual holidays, bereavement leave, alternative holidays, public holidays and sick leave.

We identified a number of our people who required remediation payments and have been able to make most of the payments. Where possible we have contacted past employees using the details held on our HR records via email and text message, and also by post. There are still a few past employees we have not been able to get in touch with.

Employment Between August 2011 and October 2019

If you were employed by Opus between August 2011 and October 2019, then you could be entitled to a payment. If your employment with us finished prior to December 2021 and you think you may be due a payment, please get in touch. You can contact us by emailing [email protected] and providing us with your name and when you worked with us. We will then confirm if you are due a payment or not and what the next steps are. You will be required to provide us with updated information and remediation payments will be processed as soon as possible after your completed information has been received.

Note that if you were employed by WSP in December 2021 and were owed a payment, you will have received it through the normal payroll process.

Background

The Holidays Act 2003 was established to promote a healthy work/life balance for all employees working in New Zealand and to provide for minimum holiday entitlements. The Act sets out how employers should pay their employees for annual leave, public holidays, sick leave, alternative holidays, bereavement leave and more recently the new family violence leave. All New Zealand employers must comply with the Holidays Act.

The Act is a complex piece of legislation and many businesses have fallen short of meeting their obligations under the Act. You can read more about the review that is currently in place here:

Holidays Act reform | Ministry of Business, Innovation & Employment

WSP/Opus Review

When we were made aware of the Holidays Act issues, we voluntarily commenced our own investigation and analysis. We subsequently agreed a plan of action with MBIE (called an Enforceable Undertaking).

We reviewed all payments processed back to 17 August 2011 and we identified employees who were owed a remediation payment.

We worked closely with the Labour Inspector (MBIE), PWC and KPMG, and our Payroll provider - Frontier Software Ltd, to ensure our systems and processes moving forward were robust and to ensure we comply with the Holidays Act on an ongoing basis.

The Labour Inspector signed off our remediation methodology, process and recalculations.
Through this extensive piece of work, we are confident that the remediation calculations and system/process improvements fully remedied all issues.

Through remediation we are now able to ensure that our people, historically and currently, receive the minimum entitlements when they have taken or take annual holidays or other leave types.

Frequently Asked Questions

If my pay was always the same, would I have been impacted?

Generally, employees who worked a standard number of hours and days per week (i.e. no variability in their pay) were not affected.

The most common reasons for error involved people with variable pay and/or variable hours of work (i.e. allowances, regular changes in the number of hours worked etc). Most employees who had a pay that did not change each fortnight were in the most part unaffected.

How far back do recalculations go?

Calculations ranged from 17 August 2011 to 31 October 2019 or from when an employee commenced employment with Opus/WSP, whichever was the earliest date.

What will I need to do?

All past employees impacted need to provide updated information about bank account, tax rate, student loan, KiwiSaver etc by completing the form below and returning it to [email protected]. Once received we will process your remediation payment in the next available pay run.

Download Holiday Act Remediation Form for Former Employee

You will also need to provide a copy of your driver licence or passport so that we can ensure we are making payment to the correct person and to minimise the risk of fraudulent activity.

Will I receive interest on my remediation payment?

Interest is not paid on remediation payments.

Was anyone overpaid?

Yes, we identified some employees who were overpaid. However, WSP decided there would be no action to seek recovery of overpayments.

How are remediation payments taxed?

All remediation payments will be taxed as a lump sum payment as per Inland Revenue guidelines. The payment is taxed at the current tax rate and reported to Inland Revenue as earnings for the current tax year.

We will be asking all past employees to confirm which tax rate they want to be applied to their remediation payment (along with confirmation of KiwiSaver deduction rates).

The Inland Revenue website has useful information on the tax treatment of lump sum payments such as an arrears payment. A fact sheet is available at ir1046.pdf

We encourage you to contact the relevant organisation such as Inland Revenue 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.

You can also contact the IRD directly on 0800 775 247.

Can the payment be taxed as earnings in a previous tax year?

No - the guidance from Inland Revenue is clear on this. Backdated remedial payments are taxed at the current tax rates and reported to Inland Revenue as income in the current tax year. We are not able to record your payment against another tax year or years.

What will happen with Superannuation payments?

KiwiSaver contributions (i.e. employee and employer where applicable) will be deducted as per the details you provide on the remediation form, from any remediation payments as per normal payroll processing.

If you were in the Government Superannuation Scheme (GSF) or WSP Downer super (previously known as Works Superannuation), your super payments have not been affected by the Holidays Act calculations and there will be no impact to your remediation payment and no further contributions are required.

How do I make a claim on behalf of a deceased team member or a team member for whom I hold power of attorney?

Please email us at [email protected] with details of the deceased employee and we can provide further details regarding what is required.

What happens to unclaimed money?

All remediation payments will stay with WSP for a period of time, and then will be forwarded to Inland Revenue as unclaimed monies. After this, payments will then need to be claimed and processed through Inland Revenue.

Where can I read more about this issue?

Ministry of Business, Innovation and Employment (MBIE) - Holiday Legislation Review

Who do I contact for further information?

If you have any further questions, please feel free to contact us at [email protected].