Defence force volunteers

What an employer must do

An must allow an who volunteers for certain types of service with the defence force – 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 or otherwise), but they must hold the employee’s job open and protect their entitlements with limited exceptions.

Volunteers leave

Volunteers leave covers 3 different situations:

• protected voluntary service or training
• service in a time of war or emergency
• special service 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.

Rights and benefits specified by the employer

An employer can provide for volunteers leave rights and benefits that are overall the same or better than those under the law. In this situation, these rights and benefits will apply. However, the rights and benefits provided by the employer must cover all the following:

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

These rights and benefits might be outlined in an employee’s or in a workplace policy. However, this is not a requirement. 

Volunteers leave situations

Protected voluntary service or training

This section applies to 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 (1 July to 30 June)
• 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, and the below protections will not apply.

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 reasonable grounds) and cannot come back to work right away after their service.

Public holidays (and other paid holidays that are not annual holidays) falling during a period of protected voluntary service or training are assessed as if the employee had ceased to be employed through that period.

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.
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 employee can return to the employer at or before the end of this leave of absence. An exception is where the employee is on a fixed-term or casual employment agreement that would not have continued if they hadn’t taken the leave of absence.

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.

Service in a time of war or emergency

This section applies to 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. These employees 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 for service in a time of war or emergency
• 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 during a situation of national interest

This section applies to employees who undertake special service, either in NZ or elsewhere, where there has been a situation of national interest declared. These employees are entitled to volunteers 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 during 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

This section applies only to employees who take volunteers leave in a time of war or emergency, or for special service during a situation of national interest.

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 period of leave is (or is likely to be) more than four weeks, and
• the employer can prove that they cannot keep the employee’s position open.

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
• 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, 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

Additional employer obligations

Employer obligation to respond to a notification

If an employer is notified that an employee wishes to take volunteers leave for service in a time of war or emergency, or for special service during 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 this 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
• specific information about the law that applies to the type of the leave the employee wishes to take. If the employee wishes to take volunteers leave for service in a time of war or emergency, see section 14E(e) of the Volunteers Employment Protect Act 1973. If the employee wishes to take volunteers leave for special service during a situation of national interest, see section 14L(e) of the Volunteers Employment Protection Act 1973.

Volunteers Employment Protection Act 1973 - New Zealand Legislation(external link)

Employer obligation to confirm arrangements

Within 21 days of the employee going on their volunteers leave for service in a time of war or emergency, or for special service during a situation of national interest, their employer must give them another written notice stating:

• 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), as well as the employee and employer's rights and obligations in relation to notice about returning to work, ending leave early and extending leave, or
• if their job is not being kept open, the 26-week period of preference, as well as the employee and employer's rights and obligations in relation to ending leave early and extending leave.

If the employee is going on volunteers leave for special service during a situation of national interest, the written notice must also state the date that the employee’s leave will end. 

Returning to work

Employee’s obligation in relation to the return to work

If an employee has their job kept open for them while they take volunteers leave for:

• service in a time of war or emergency, or
• special service during a situation of national interest,

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, or
• if they do want to return to work, the employer and employee must cooperate in 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

If an employee takes volunteers leave for:

• service in a time of war or emergency, or
• special service during a situation of national interest,

the employee can, if their employer agrees, give at least 21 days’ notice in writing to 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

If an employee takes volunteers leave for:

• service in a time of war or emergency, or
• special service during a situation of national interest,

they can, if their employer agrees, or if an extension of leave is required as a result of a Government 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

If an employee takes volunteers leave for:

• service in a time of war or emergency, or
• special service during a situation of national interest,

their employment will be considered to have ended on the day they went on volunteers leave, if:

• their position is kept open, but they do not return to work at the end of their leave without good cause, or they let their employer know that they won’t be returning to work when their leave ends (unless the employer and employee agree that employment will end on a different date), or
• they are offered a position very similar to their previous position while they are in their period of preference but do not take it up within seven days without a reasonable excuse.

Continuity of employment

Continuity of employment is considered unbroken if the employee goes back to work either:

• at the end of a period of volunteers leave, or
• before the end of a period of preference.

This means that in these circumstances:

• the employee is eligible for any rights or benefits that rely on unbroken employment
• this time counts as time served under the employee’s employment agreement (with limited exceptions regarding certain holidays), and
• this time counts as employment 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 period of preference does not affect the employee’s obligations to pay contributions to a superannuation scheme.

An employer does not have to pay the employee while they’re on volunteers leave or in the period of preference (unless they have agreed otherwise).

If an employee takes volunteers leave for:

• service in a time of war or emergency, or
• special services during a situation of national interest,

and becomes entitled to annual holidays during:

• the period of volunteers leave
• a period of preference, or
• the 12 months after they return to work from the leave or start a period of preference,

then they are entitled to holiday pay for that holiday only at the rate of their for the 12 months up to the end of the last pay period before the annual holiday. This can result in the employee receiving less than they normally would for their annual holiday pay when they return. The payment rate for the employee’s annual holidays will increase gradually and over time their holidays will again be paid at their full value.

An employee’s holiday pay might be higher if this is outlined in the employment agreement.

The average weekly earnings override does not apply to employees who have been on leave for protected voluntary service or training. Annual holiday pay for these employees must be calculated the normal way.

Calculating holiday and leave pay

Discrimination and ending employment

An employer cannot discriminate against an employee or, subject to limited exceptions, end an employee’s employment, because they:

• take, have taken, or have indicated they wish to take, volunteers leave,
• are or have been a member of the reserve forces or territorials, or
• are, as member of the reserve forces or territorials, entitled (or may become entitled) to volunteers leave.

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 (whichever is later).

The employee must send their complaint to their immediate supervisor as soon as possible. If it is not resolved, or it’s inappropriate to discuss it with the supervisor, the employee must either:

• take the matter up with their employer (either by themselves or through a representative), or
• tell their union (who must, if there is substance in the complaint, take the matter up with the employer).

If the problem cannot be resolved by discussion with the employer, the complaint must be put in writing. This written statement must set out the facts relied on. Parties can then attempt to resolve the matter by using mediation services, or by referring it to the Employment Relations Authority.

Steps to resolve problems

Mediation

Employment Relations Authority(external link)