Everyone
Defence force volunteers
An employer must let employees take leave – and keep their jobs open – while they are training for, or serving voluntarily in the Armed Forces.
What an employer must do
An employer must allow an employee who volunteers for service with the defence forces – and needs time away from work for this service or training – to take volunteers leave. The employer does not have to pay for the leave (unless this is agreed in the Employment agreements contain the terms and conditions of employment. Every employee must have a written employment agreement outlining the terms and conditions of employment. ‘Employment agreement’ has a broader meaning that includes all other documents and other agreements forming part of the contractual agreement between the employee and employer.
Volunteers leave
Volunteers leave covers 3 different situations:
- protected voluntary service or training
- service in a time of war or emergency
- special services during a situation of national interest.
There are written notice requirements for employees and employers which differ depending on which service or training situation applies. The duration of the leave, and other details, also differ depending on which of the three situations apply.
Employment agreements
If an employee’s employment agreement includes volunteers leave rights and benefits that are overall the same or better than those under the law, then those in the agreement apply. However, the employment agreement must cover all the following:
- conditions of eligibility for volunteers leave
- duration of volunteers leave
- protection for the employee’s job during and after leave
- whether or not the employer has to pay for the leave
- procedures for leave.
This covers voluntary service or training in the armed forces requiring absence from work, which can be:
- whole-time service – being a period, or periods, of continuous training (such as basic training) up to a total of 3 months in a training year
- part-time service – in the form of annual, special, weekend and evening service or training (such as field exercises) up to a total of 3 weeks in a training year.
The employee’s travel time to, and from, the service is also included in the protected service.
An employee must advise their employer at least 14 days before doing protected voluntary service or training that will require them to be absent from work. If they do not give their employer at least 14 days notice, the employer does not have to keep their job open.
If the employee was doing whole-time protected voluntary service or training, the employer must extend the leave of absence for up to 7 days if the employee needs it. For both full-time and part-time service or training, the employer must also extend the leave for a further, reasonable period if the employee is sick (or has some other acceptable reason) and cannot come back to work right away after their service.
Time away from work on protected voluntary service or training does not interrupt employment, and employment is considered to be continuous. This means that time away on protected voluntary service or training counts towards time served for annual holidays, and other entitlements and benefits relying on continuous service. This includes service towards superannuation schemes – but only if the employee pays any required superannuation contributions during the protected voluntary service or training.
Despite time away from work on protected voluntary service or training not interrupting employment, it is still viewed as a leave of absence, so entitlement to public holidays and other leave days is assessed as if the employee had ceased to be employed through the period of service or training.
An employer cannot require an employee to use their annual holidays or other leave during a period of protected service or training unless the employee has requested it.
If an employer thinks the employee’s volunteering for a period of protected service or training will cause undue hardship for the employer, they can apply to the Ministry of Business, Innovation and Employment for a postponement.
An employer must treat an employee’s protected voluntary service or training as a leave of absence, meaning the employee returns to their same job, terms and conditions. An exception is where the employee is on a fixed-term or casual employment agreement that would not have continued even if they hadn’t taken the leave of absence.
War or emergency
Employees who are members of the Territorial Forces or Reserve forces and are called out for continuous service in a time of war or for an emergency, either in NZ or elsewhere, are entitled to volunteers leave if they’re employed for at least 10 hours a week. Their leave starts on the day they’re called out, or at a time agreed with the employer.
The employee must, as soon as practicable after they know they might be called out, or are called out, give notice in writing to their employer stating:
- that they’ve been called out (or might be called out)
- that they do or do not want to take volunteers leave
- if they do want to take leave: the start date of the leave, how long the leave will be, or if they do not know, that they’ll let their employer know in writing when they find out. If the length of leave changes later, the employee must let the employer know in writing as soon as practicable.
Special service in a situation of national interest
Employees who undertake special service, either in NZ or elsewhere, where there has been a situation of national interest declared, are entitled to leave if they have been employed with the same employer for at least an average of 10 hours a week for the 12 months before the situation of national interest was declared.
For special service in a situation of national interest, the leave must be taken in one continuous period not exceeding 12 months. An employee must give at least 28 days’ notice in writing to their employer stating:
- the proposed date the employee wishes to start their leave
- the duration of the leave.
Job protection
If an employee meets the criteria and gives the proper notice, they must be allowed to take leave from and return to, the same job, unless the employer can prove that they cannot keep their position open during periods greater than four weeks.
For a position not to be kept open, the employer must establish that it’s not 'reasonably practicable' to put in a temporary replacement because of the key nature of the position or because there’s a redundancy situation. In working out whether a position is key, and a temporary replacement would not be reasonably practicable, each case should be decided on its merits, considering things like the size of the employer's business, and the training period or skills required to do the job. If the employer fills the position temporarily, they must let the temporary employee know in writing that they’re employed on a temporary basis in place of an employee who is on leave under Part 2 or 3 of the Volunteers Employment Protection Act 1973 and that the employee on leave might return to work early.
Volunteers Employment Protection Act 1973 - New Zealand Legislation(external link)
If an employer can demonstrate that a job cannot be held open because it’s a key position, they are obliged to give the employee preference over other applicants during a period of 26 weeks (period of preference), beginning with the date on which the leave ends, for any position that is very similar to the one the employee previously held.
Employer obligation to respond to a notification
If an employer is notified that an employee wishes to take volunteers leave in a time of war or emergency, or because of special service in a situation of national interest, they must give the employee a notice in writing within 21 days stating:
- whether or not the employee is entitled to take leave (and if not, why)
- that until the end of the employee’s leave, their position can or can’t be kept open
- if it cannot be kept open, informing the employee that they can dispute this, and will be given preference over other applicants for any vacant position substantially similar to the employee’s position, for a period of 26 weeks (period of preference) starting at the end of their leave
- any other information about the law for emergency and wartime service and national interest service.
Employer obligation to confirm arrangements
Within 21 days of the employee going on their volunteers leave, their employer must give the employee another written notice stating:
- the date that the employee’s leave ends, and
- if their job is being kept open, the date that they’ll need to return to work (the next working day after the end of the leave), and the employee's rights and obligations, or
- if their job is not being kept open, the 26-week period of preference and the employee's rights and obligations.
Returning to work
Employee’s obligation in relation to the return to work
If an employee has their job kept open for them, they must tell their employer in writing no later than 21 days before their leave ends whether or not they will be returning to work at the end of their leave – unless it is not reasonably practical for them to give this notice, in which case:
- if they do not want to return to work, they must tell their employer in writing as soon as practicable
- if they do want to return to work, the employer and employee must cooperate in good faith to try to agree arrangements for the employee’s return to work, and if they can’t agree, the employee must give the employer at least 7 days notice in writing of their return date.
Returning to work early
An employee can, if their employer agrees, give at least 21 days’ notice in writing, and end their leave early:
- and return to work if their job is being kept open by their employer, or
- start their period of preference early.
Returning to work later
An employee can, if their employer agrees, or if an extension of leave is required by a proclamation, extend their leave until a specified date, but no later than 12 months from the date they went on leave.
Failure to return to work
Employment will be considered to have ended on the day an employer went on leave, if:
- their position is kept open, but they do not return to work at the end of their leave without good cause, or let their employer know that they won’t be returning to work when their leave ends, or
- they are offered a position very similar to their previous position while they are in their preference period but do not take it up within seven days without a reasonable excuse.
Continuity of employment
When an employee goes back to work after protected voluntary service (including following or during their preference period), their service is unbroken for the purposes of any rights or benefits that rely on unbroken service. The employee’s time spent on leave and/or period of preference counts as:
- time served under the employee’s employment agreement, except that the employer does not have to pay the employee while they’re on leave or in the period of preference. If the employee becomes entitled to annual holidays while on leave or in the period of preference, or in the 12 months after they return to work or start their period of preference, the employee is entitled to holiday pay at the rate of their
average weekly earnings for the 12 months up to the end of the last pay period before the annual holiday. (An employee’s employment agreement may provide for holiday pay at a rate the same as or higher than this.)This is 1/52 of an employee’s gross earnings for the 12 months up to the end of the last pay period before they take an annual holiday. In some situations, average weekly earnings may be calculated over less than 52 weeks.
- service for the purpose of any superannuation scheme the employee belongs to as part of their employment (except where the employee has to pay superannuation contributions for a period and does not pay them). Taking leave or going on a preference period does not have any effect on the employee’s obligations to pay contributions to a superannuation scheme.
Discrimination
An employer cannot end an employee’s employment, or discriminate against them, because they take, have taken, are entitled to, or may become entitled to, take volunteers leave, or they are or have been a member of the reserve forces or territorials.
Procedures for complaints
An employee has a right to raise a volunteers’ leave complaint within 26 weeks of the issue happening, or within eight weeks of the end of the volunteers leave.
The employee must send their complaint to their immediate manager as soon as possible. If it is not resolved, or it’s inappropriate to discuss it with the manager, the employee must tell their union or representative or take it up directly with their employer. If the problem cannot be resolved by discussion, parties can attempt to resolve the matter by using mediation services, or by referring it to the Employment Relations Authority.