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Defence force volunteers

An employer has to let employees take leave and must keep their job open while doing training or service for the Armed Forces.

Under the Volunteers Employment Protection Act 1973, an employer has to let employees take leave while they do Armed Forces’:

  • full-time or part-time voluntary training or service (unpaid) and/or
  • active operational service, if they are called up or volunteer in a ‘Situation of National Interest’, war or emergency.

Employers must hold an employees job open and protect their entitlements but don’t have to pay employees for any period while on leave.

Protected voluntary service

The Act protects employees’ jobs during military training and/or service when they’re away from their normal employment for training service or operational service. Employers have the right to apply to postpone an employee’s service or training if the employee’s absence will cause them undue hardship. If an employer gets notice that their employee will be taking time off work for voluntary service or training, or war/emergency service, or situation of national interest service, they need to respond to their employee in writing within 21 days. 

Employment agreements

If an employee’s comprehensive employment agreement or arrangement says that the employee has volunteer’s leave rights and benefits that are overall the same or better than those under the law then these apply. An employment agreement is comprehensive if it addresses all of the following:

  • conditions of eligibility for volunteers’ leave for all relevant types
  • duration of volunteers’ leave for all relevant types
  • protection for the employee’s job during and after leave
  • whether or not the employer has to pay for the leave
  • procedures for leave.

Unless it contains all of the above, none of the provisions relating to volunteers leave service in the employment agreement or arrangement apply. The provisions of the Volunteers Employment Protection Act 1973 relating to protection, remedies and miscellaneous provisions apply in all cases.

The Defence Force website (external link)  has more information for employers and employees.

Whole-time service

Volunteers with the Reserve forces receive protected service for a total of 3 months of whole-time training in any training year with the Armed Forces.

Part-time service

Volunteers with the Reserve forces receive protected service for a total of 3 weeks in any training year.

Employees need to advise their employer at least 14 days before doing whole-time service and part-time service (if training means they will have to take time off work) that they’ll be taking volunteers’ leave. If they don’t give their employer at least 14 days’ notice, then the employer doesn’t have to keep their job open while they take volunteers’ leave.

If an employer thinks that the employee’s volunteering for that service or training will cause undue hardship for the employer, the employer can apply for a postponement by contacting us. 

The employer must treat an employee’s voluntary service or training as leave of absence (without pay). At the end of the service period the employer must extend the period of leave of absence for up to 7 days if the employee needs it. If the employee is sick (or has some other acceptable reason) and can’t come back to work right away after their service, then their leave of absence must be extended for a further (but reasonable) period.

If the employee returns to work on or before this leave of absence, they must continue in the same job as before and on no less favourable terms and conditions. Unless the employee is on a fixed-term or casual employment agreement which would not normally have continued even if they hadn’t taken the leave of absence.

An employee’s leave of absence for voluntary service doesn’t interrupt their employment which is continuous during this period and counts towards service for annual holidays, periodical holidays, leave with pay and superannuation schemes.

An employee’s leave of absence for voluntary service doesn’t impact on an employee’s responsibilities to pay contributions to superannuation schemes.

The employee’s rights to be allowed any day as a holiday on full pay (eg a public holiday) during their service or training is to be worked out as if the employee had stopped their employment with the employer at the beginning of the service or training.

If an employee meets the criteria and gives the right notice, the employee must be able 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. 

To prove the employer can’t keep the position open, they 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 temporary replacement is not reasonably practicable each case is decided on its own merits, considering things like the size of the employer's business, and the training period or skills required in 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.

If an employer can prove that the job can’t be held open because it’s a key position, the employer is 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.

War or emergency

Employees who are members of the reserve forces and are called out for continuous service either in NZ or elsewhere and who, at the time of the Proclamation, were employed, are entitled to leave if they’re employed for at least 10 hours a week. Their leave starts on the day they’re called out or earlier if the employer agrees.

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 saying:

  • that they’re called out (or might be called out)
  • that they do or don’t want to take leave under Part 2 of the Volunteers Employment Protection Act 1973
  • if they do want to take leave, the start date of the leave, how long the leave will be or if they don’t know, then a statement 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 are members of the reserve forces and are called out for continuous service either in NZ or elsewhere and who, at the time of the Proclamation, were employed, are entitled to leave if they’re employed for at least 10 hours a week. Their leave starts on the day they’re called out or earlier if the employer agrees.

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 saying:

  • that they’re called out (or might be called out)
  • that they do or don’t want to take leave under Part 2 of the Volunteers Employment Protection Act 1973
  • if they do want to take leave, the start date of the leave, how long the leave will be or if they don’t know, then a statement 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. 

Employees notices when an employee requests leave

1. If an employer gets a notice that an employee wants to take one of these types of leave, they have to 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), and
  • that until the end of the employee’s leave, their position can or can’t be kept open, and
  • if it can’t be kept open, informing the employee that they can dispute this and they 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
  • more information about the law for emergency and wartime service and national interest service.

2. Within 21 days of the employee going on this 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 isn’t being kept open, the 26-week period of preference and the employee's rights and obligations.

Employee's notice in relation to returning to work

  • If an employee’s job is being kept open, 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 isn’t reasonably practical for them to give this notice, in which case
    • if they don’t 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 co-operate 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 seven days’ notice in writing of their return date. 

Continuity of service

When an employee goes back to work after protected service (including following or during their preference period), their service is unbroken for the purposes of any rights or benefits which rely on unbroken services. 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 doesn’t 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 immediately before 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 or higher than this.)
  • service for the purpose of any superannuation scheme the employee belongs to because they are employed by the employer (except that if the employee has to pay superannuation contributions for a period and doesn’t pay them, then that period won’t count as service). Taking leave or going on a preference period doesn’t have any effect on the employee’s obligations to pay contributions to a superannuation scheme

Returning to work early

If their employer agrees, an employee can give at least 21 days’ notice in writing and end their leave early:

  • and return to work early if their job is being kept open by their employer, or
  • start their period of preference early.

Returning to work later

If their employer agrees, or if an extension of leave is required by a Proclamation, an employee can extend their leave until a specified date but that can’t be more than 12 months from the date the employee went on leave under Part 3 of the Act.

Failure to return to work

If an employee

  • whose position is kept open doesn’t return to work at the end of their leave without good cause or lets their employer know that they won’t be returning to work when their leave ends, or
  • who is offered a position very similar to their previous position while they are in their preference period, but doesn’t take it up within seven days without a reasonable excuse,

 their employment ends from the day they went on leave.

An employer can’t end an employee’s employment, or discriminate against them, because they take, have taken, are entitled, or may become entitled to, take volunteers’ leave, or they are or have been a member of the reserve forces or territorials.

An employee has a right to raise a volunteers’ leave complaint within 26 weeks from the date of the issue happening, or within eight weeks from the end of the volunteers leave.

The employee has to send their complaint to their immediate manager as soon as possible. If it isn’t resolved or it’s inappropriate to discuss it with the manager, then the employee has to tell their union or representative or take it up directly with their employer. If the problem can’t be resolved by discussion, then parties can attempt to resolve the matter by using mediation services, and then by referring to the Employment Relations Authority.

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