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 An individual or organisation that hires 1 or more employees and contracts them to work in exchange for wages or salary under a ‘contract of service’ (commonly called an ‘employment agreement’). Any person, whatever their age, who is employed by an employer to do any work for hire or reward under a ‘contract of service’ (commonly called an ‘employment agreement’). A written document setting out the terms and conditions of employment agreed by the employer and employee (also known as a ‘contract of service’). It can include other contractual documents and agreements made by the employer and employee. Every employee must have a written employment agreement.
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 A written document setting out the terms and conditions of employment agreed by the employer and employee (also known as a ‘contract of service’). It can include other contractual documents and agreements made by the employer and employee. Every employee must have a written employment agreement.
- 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.
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.An underlying principle in employment law which requires employers and employees to deal with each other honestly, openly, and in a fair and timely way.
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.)1/52 of an employee’s gross earnings for the 12 months up to the end of the last pay period before they take annual holidays (or however many weeks they’ve worked if it’s under a year).
- 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 The tribunal established under the Employment Relations Act to resolve employment relationship problems.