Legislation
Volunteers Employment Protection Amendment Act 2004 (VEPA 04) - SUMMARY
The following is a summary of some of the provisions of the Act and is intended for general information purposes.
Therefore, this summary is not a legal document. In case of any discrepancy between this document and the Act, the wording in the Act is to take precedence.
For a copy of the full Act visit www.legislation.govt.nz
Introduction to the Volunteers Employment Protection Act (VEPA 04)
1. The Act provides for Reserve Forces personnel to perform their military duties without risking loss of their normal employment and its associated entitlements. However, certain conditions apply.
The employer must be given notice of the upcoming military service and the employee is only entitled to prescribed amounts of protected service. There are obligations on both the employer and employee to document the giving of notice and responses in writing for the protection of all concerned.
There are rights of appeal available to the employer where the absence of the employee would cause undue hardship to the employer or the business.
Protected Voluntary Service
2. The Act protects employees during military service requiring an absence from their normal employment. It distinguishes between whole-time service, part-time service and operational deployments, providing separate time allocations and notice periods for each.
Pay
3. The employer is not obliged to pay the employee for any period of leave. However, time away under this Act does not affect employees’ entitlements as provided for under the Holidays Act 2003.
Continuity of Employment
4. An employee’s service under this Act is considered continuous employment for the purposes of rights and benefits based on unbroken service, such as (but not limited to) membership of superannuation schemes and leave entitlements.
Whole-time Service
5. Whole-time service represents periods of continuous training with the Armed Forces, such as initial basic training and officer commissioning courses. Volunteers receive protected service for an aggregate of 3 months of whole-time training in any training year with the Armed Forces.
Part-time Service
6. Part-time service includes field exercises, weekend and evening training and special events. This Act provides protection of employment for an aggregate of three weeks service in any training year. To obtain protection of employment, 14 days notice must be given to the employer, whom has a right of appeal provided in the Act.
7. Not only is the actual time spent in service protected, but also the time spent travelling to and from any place of service. Employment is also protected if the volunteer is prevented from returning to work following a period of service, due to sickness or any other reasonable cause attributable to the service.
Operational Service
8. The provisions in Part 3 are intended for overseas deployments, but they are effective only if the Government specifically declares a Situation of National Interest (SONI) under section 50A of the Defence Act 1990.
If a SONI is not declared they are dormant and do not apply. Under a SONI there are various entitlements, including 12 months leave without pay from the primary employment for Reserve Forces personnel proceeding on operational deployments.
If a SONI is not declared, the only protection that could apply for personnel proceeding overseas on deployments is the 3 months protection given for whole time training under Part 1, though it is not intended to be used this way.
To obtain protection for a period of leave without pay under a SONI, 28 days notice must be given to the employer, who has a right of appeal detailed in the Act.
Defences Available to Employers
9. There are defences available to employers who can prove that they cannot keep the position open during periods greater than 4 weeks. If the employer can prove the unsuitability of the position for a temporary staff member, or prove that a redundancy situation arose during the absence of the employee, then the position does not have to be held open.
10. If the employer can prove that the employment cannot be held open, the employer is typically obliged to give the employee preference over other applicants during a period of 26 weeks for appointment to any position which is vacant and which is substantially similar to that which the employee previously held.
Extension of Leave
11. Leave may be extended with the employer’s consent, or as a result of a Governor-General’s Proclamation up to a maximum of 12 months.
Mobilisation Categories
Proclamation
12. Mobilisation can occur under a Proclamation by the Governor-General in Part 2 of the Act. This would only occur in time of extreme national emergency.
Situation of National Interest (SONI)
13. Part 3 of the Act allows that, where the Government needs more volunteers than are readily available, a SONI can be declared under section 50A of the Defence Act.
Notice of Obligations
14. The Act requires a number of detailed requirements relating to the notification of both employers and employees regarding issues such as (but not limited to) desire to take leave, acknowledgement of receipt, date of intention to return to work, and intention to appeal. Adherence to these periods of notice is necessary in order to obtain the protection detailed in the Act.
Resuming Employment After Protected Service
15. When volunteers present themselves to their employer at the completion of a period of voluntary service the employer has obligations as follows:
16. Under annual protected voluntary service or training under Part 1 of the Act, the employer is obliged to resume the employment immediately, in the same occupation, and on the terms and conditions not less favourable than that which they could expect had they not undergone the protected service.
17. Under service in time of war and emergency under Part 2 of the Act the employer is obliged to keep the job open with the following exceptions. If the period of leave is greater than four weeks, and the employer can prove it is not possible to keep the job open, the employee will then be given preference for application to any vacant position substantially similar to that formerly held for a period of up to 26 weeks after the leave has ended.
18. Under a SONI in Part 3 of the Act, the employer is obliged to keep the job open with the following exceptions. If the period of leave is greater than 4 weeks, and the employer can prove it is not possible to keep the job open, the employee will then be given preference for application to any vacant position substantially similar to that formerly held for a period of up to 26 weeks after the leave has ended.
19. There are exemptions stated in the Act, depending on the type and duration of leave, and under which Part of the Act it is taken. Examples of exemptions are where the original employment was of a temporary or casual nature or the employment would not normally have continued beyond the period of service.
Procedures for Complaints
20. Initial action for a complaint is to raise it with the employee’s immediate supervisor, to enable it to be settled rapidly and as close as possible to the point of origin.
The next step is to raise it with a union representative or take it up (with or without legal representation) with the employer.
If the complaint cannot be resolved by raising it with the employer, a statement of the facts must be made in writing. It may then be referred to the Employment Relations Authority.
Territorial Forces Employer Support Council (TFESC)
21. The Act amends the Defence Act 1990 to create by statute the Territorial Forces Employer Support Council (TFESC). The Minister of Defence appoints the Council.
Conclusion
22. The VEPA 04 offers a degree of protection to Reserve Forces personnel volunteering for service requiring an absence from employment. While the employer, having been given the prescribed notice, is typically obliged to grant the volunteer leave of absence, it is possible that a conflict of interest will at times occur between the volunteer and the employer.
Wherever possible it is highly desirable to negotiate an understanding and compromise between the employer and the volunteer without resorting to the requirements of the Act. There may be issues such as seasonal factors or other staff absences, which make it difficult for the employer to release an employee at a particular time. Every effort should be made to accommodate such issues.
Educating employers about the benefits they gain through the participation of their employees in the Reserve Forces is useful in alleviating concern about the costs associated with an employee’s absence due to voluntary service, and thereby gaining the willing support of employers.