Volunteers Employment Protection Amendment Act 2004

1: Title
1: This Act is the Volunteers Employment Protection Amendment Act 2004.
2: In this Act, the Volunteers Employment Protection Act 1973 the principal Act
2: Commencement
This Act comes into force on 1 April 2004.
3: Purpose
The purpose of this Act is to amend the principal Act—
a: to provide protection for the employment of members of the territorial forces or the reserve forces—
i: who, in time of war or other like emergency or during any state of emergency declared under the Civil Defence Emergency Management Act 2002 section 39(2) 40(2) Defence Act 1990
ii: who were, at the time of the making of the Proclamation, employed by an employer:
b: to improve the protection that is provided under this Act for the employment of members of the territorial forces or the reserve forces—
i: who, in the event of an actual or imminent emergency involving the deployment of members of the Armed Forces outside New Zealand, are, as a consequence of a Proclamation made under section 39(3) 40(3) Defence Act 1990
ii: who were, at the time of the making of the Proclamation, employed by an employer:
c: to provide protection for the employment of members of the territorial forces or the reserve forces and other persons—
i: who undertake special service under section 50 Defence Act 1990
ii: whose obligation to undertake that service arises from the acceptance, during a period specified in an order made under section 50A Defence Act 1990 section 50
iii: who were, at the beginning of the period specified in the order made under section 50A Defence Act 1990
d: to authorise the making of regulations providing for payments by way of compensation to be made to employers whose employees (being employees entitled under section 14H Part 3 section 50A Defence Act 1990
e: to revise the employment protection provisions of the principal Act so that they are based on the employment protection provisions of the Parental Leave and Employment Protection Act 1987
4: New
section 2 The principal Act is amended by repealing section 2
2: Interpretation
1: In this Act, unless the context otherwise requires,— Armed Forces
a: means the Armed Forces within the meaning of the Defence Act 1990
b: includes any branch, corps, command, formation, unit, or other part of the Armed Forces within the meaning of the Defence Act 1990
c: does not include any part of the cadet forces chief executive department employee section 6 of the Employment Relations Act 2000 employment agreement section 5 of the Employment Relations Act 2000 section 242 of the Employment Relations Act 2000 Employment Court Employment Relations Act 2000 Employment Relations Authority Employment Relations Act 2000 Labour Inspector section 223 of the Employment Relations Act 2000 protected voluntary
a: means voluntary service or training in the Armed Forces necessitating an absence from employment (other than during a period of holiday or leave to which the employee is entitled other than by virtue of this Act) for a period or periods of—
i: whole-time service in the form of one or more periods of continuous service or training not exceeding in the aggregate 3 months in any training year with the Armed Forces; and
ii: part-time service in the form of annual, special, weekend, and evening service or training, not exceeding in the aggregate 3 weeks in any training year; and
b: includes—
i: any period or periods spent in travelling to and from any place of service or training:
ii: any period or periods during which a volunteer is prevented from resuming employment after service or training because of sickness or any reasonable cause attributable to the service or training; but
c: does not include any service that, even though it necessitates an absence from employment, is service in respect of which leave may be granted under Part 2 or Part 3 reserve forces section 2(1) of the Defence Act 1990 State employee
a: every person whose rate of remuneration is determined under the State Sector Act 1988
b: every person whose rate of remuneration is determined under any of the provisions of sections 67, 67A, 75, and 76 of the Police Act 1958
c: every person employed in the State services whose remuneration is determined by the Remuneration Authority State services section 2 of the State Sector Act 1988 territorial forces section 2(1) of the Defence Act 1990 training year undertaking union Employment Relations Act 2000 volunteers leave
a: means leave to which an employee is entitled in accordance with Part 1 or Part 2 or Part 3
b: includes leave of the kind described in paragraph (a)
i: any Act other than this Act; or
ii: any employment agreement.
2: Where it is necessary, for the purposes of applying any of the provisions of sections 7A, 14H(b), and 14R clauses 1 to 5 of Schedule 2
a: whether any employee has remained in the employment of the same employer during any period of time; or
b: whether any employee has resumed employment with the same employer,— the provisions of that schedule apply.
5: References to worker changed to references to employee
1: The provisions of the principal Act specified in Part 1 worker employee
2: The provisions of the principal Act specified in Part 2 worker's employee's
6: New
section 3A The principal Act is amended by inserting, after section 3
3A: Application of this Act to employees who have non-statutory rights to volunteers leave
1: Parts 1 to 4
a: entitle the employee to volunteers leave; and
b: are in their overall effect, as favourable to that employee as, or more favourable to that employee than, the rights and benefits provided for in Parts 1 to 4
c: are provided under a comprehensive employment agreement or arrangement (other than this Act).
2: An employment agreement or other arrangement is comprehensive if it effectively addresses all of the following matters:
a: the conditions of eligibility for volunteers leave under Part 1 Part 2 Part 3
b: the duration of volunteers leave under Part 1 Part 2 Part 3
c: the degree of protection for the employee's position in the employment of the employer during and subsequent to any absence on volunteers leave:
d: the employer's obligation or lack of obligation to pay remuneration during volunteers leave:
e: the procedural requirements relating to volunteers leave.
3: The provisions of an employment agreement or other arrangement that are not comprehensive are of no effect so far as they relate to volunteers leave.
4: Parts 5 to 7 1987 No 129 s 4
7: Part 1 The principal Act is amended by inserting, before section 4
1: Protected voluntary service or training
8: Repeal of
sections 6 7 Sections 6 7
9: New
sections 7A 7B The principal Act is amended by inserting, before section 8
7A: Continuity of employment
Where an employee resumes service with the same employer at the end of a period of leave under this Part,—
a: the employee's service, for the purpose of any rights and benefits that are conditional on unbroken service, are not broken by the taking of leave under this Part; and
b: any period during which the employee was on leave under this Part counts—
i: subject to sections 8 and 9
ii: subject to section 7B 1987 No 129 s 43
7B: Contributions to superannuation schemes
Nothing in section 7A(b)(ii)
a: entitles an employee to have any period counted as service for the purposes of a superannuation scheme if the employee is required to pay contributions in respect of that period and has not done so; or
b: relieves an employee from any obligation under a superannuation scheme to pay contributions in respect of any period during which the employee is on leave under this Part. 1987 No 129 s 44
10: Repeal of
sections 10 13 Sections 10 13
11: Applications for postponement of service or training
Section 12
a: by omitting the word Secretary chief executive
b: by omitting from subsection (2) Department of Labour department
12: New
Parts 2 to 7 The principal Act is amended by inserting, after section 14
2: Service in time of war or emergency
14A: Employees to whom this Part applies
This Part applies to the following employees:
a: every employee—
i: who is a member of the territorial forces or the reserve forces; and
ii: who, in time of war or other like emergency or during any state of emergency declared under the Civil Defence Emergency Management Act 2002 section 39(2) or section 40(2) of the Defence Act 1990
iii: who was, at the time of the making of the Proclamation, employed by an employer:
b: every employee—
i: who is a member of the territorial forces or the reserve forces; and
ii: who, in the event of an actual or imminent emergency involving the deployment of members of the Armed Forces outside New Zealand, is, as a consequence of a Proclamation made under section 39(3) or section 40(3) of the Defence Act 1990
iii: who was, at the time of the making of the Proclamation, employed by an employer.
14B: Entitlement to leave
Except as otherwise provided in this Part, every employee is entitled to leave in accordance with this Part if that employee—
a: is an employee to whom this Part applies; and
b: is, at the time of the making of the relevant Proclamation under section 39 or section 40 of the Defence Act 1990 1987 No 129 s 7
14C: Date of commencement of leave
Leave under this Part begins—
a: on the day on which the employee is called out for continuous service, either in New Zealand or elsewhere, as a consequence of a Proclamation under section 39 or section 40 of the Defence Act 1990
b: on such earlier or later date as is agreed on by the employee and the employee's employer. 1987 No 129 s 12
14D: Obligation to notify employer in relation to service in time of war or emergency
1: Where an employee becomes aware that he or she is, as a consequence of a Proclamation made under section 39 or section 40 of the Defence Act 1990
2: The notice must state, in addition, whether or not the employee wishes to take leave under this Part.
3: If the employee wishes to take leave under this Part, the notice must—
a: state the proposed date on which the employee wishes to commence leave; and
b: contain either—
i: a statement of the duration of the leave; or
ii: if the duration of the leave is not then known to the employee, a statement to the effect that the employee does not know the duration of the leave but will, as soon as practicable after the duration of the leave becomes known to the employee, give to the employer written notice of the duration of the leave.
4: If a notice under subsection (1) subsection (3)(b)(ii)
5: If, after an employee has given to the employee's employer a statement complying with subsection (3)(b)(i) or subsection (4) 1987 No 129 s 31(1), (2)
14E: Obligation to notify employee
1: Every employer who receives a notice under section 14D(1)
a: stating whether the employee is entitled to take leave under this Part; and
b: where an employer states that the employee is not entitled to take leave under this Part, stating the reasons why the employee is not so entitled; and
c: stating that, until the end of the employee's leave under this Part, the employee's position in the employment of the employer—
i: can be kept open; or
ii: cannot be kept open; and
d: where the employer states that the employee's position cannot be kept open, informing the employee—
i: that the employee may dispute the employer's statement that the employee's position cannot be kept open; and
ii: that the employer will, for the period of 26 weeks beginning with the day on which the leave under this Part ends, give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the leave under this Part; and
e: informing the employee of the substance of sections 14A, 14B, 14C, and 14S
2: Where an employee receives a notice given under subsection (1) Part 6 1987 No 129 s 36
14F: Employer's notice in relation to return to work and preference for appointment
Within 21 days after the beginning of an employee's leave under this Part, the employer of the employee must give to the employee a written notice stating—
a: either—
i: where the employer is able to keep the employee's position open until the end of the employee's leave under this Part, that, if the employee decides to return to work at the end of the employee's leave under this Part, the employee will be required to return to work, on the next working day after the date on which the employee's leave under this Part ends; or
ii: in any other case, that, for the period of 26 weeks beginning with the day on which the leave under this Part ends, the employer will give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the employee's leave under this Part; and
b: where paragraph (a)(i)
i: the employee's obligations under section 14N
ii: the employee's rights under section 14T(1)(a) section 14T(2)(a)
iii: the employee's rights under section 14U
c: where paragraph (a)(ii)
i: the employee's rights under section 14T(1)(b) section 14T(2)(b)
ii: the employee's rights under section 14U 1987 No 129 s 38
3: Service in situation of national interest
14G: Employees to whom this Part applies
This Part applies to every employee—
a: who undertakes special service under section 50 of the Defence Act 1990
b: whose obligation to undertake that service arises from the acceptance, during a period specified to be in the national interest in an order made under section 50A of the Defence Act 1990 section 50 of that Act
c: who was, at the beginning of the period specified in the order made under section 50A of the Defence Act 1990
14H: Entitlement to leave
Except as otherwise provided in this Part, every employee is entitled to leave in accordance with this Part if that employee—
a: is an employee to whom this Part applies; and
b: has, for the period of 12 months immediately preceding the making of the relevant order under section 50A of the Defence Act 1990 1987 No 129 s 7
14I: Duration of leave
Leave taken under this Part must be taken in one continuous period not exceeding 12 months. 1987 No 129 s 9(1)
14J: Right of employer and employee to determine date of commencement of leave by agreement
Leave under this Part may, by agreement between the employee and the employee's employer, begin on any date. 1987 No 129 s 12
14K: Obligation to notify employer in relation to leave for special service
1: An employee who wishes to take leave under this Part in order to undertake special service under section 50 of the Defence Act 1990
2: The notice must state the proposed date on which the employee wishes to commence leave, and the duration of the leave.
3: The notice must be given at least 28 days before the proposed date on which the employee wishes to commence leave. 1987 No 129 s 31
14L: Obligation to notify employee
1: Every employer who receives a notice under section 14K(1)
a: stating whether the employee is entitled to take leave under this Part; and
b: where an employer states that the employee is not entitled to take leave under this Part, stating the reasons why the employee is not so entitled; and
c: stating that, until the end of the employee's leave under this Part, the employee's position in the employment of the employer—
i: can be kept open; or
ii: cannot be kept open; and
d: where the employer states that the employee's position cannot be kept open, informing the employee—
i: that the employee may dispute the employer's statement that the employee's position cannot be kept open; and
ii: that the employer will, for the period of 26 weeks beginning with the day on which the leave under this Part ends, give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the leave under this Part; and
e: informing the employee of the substance of sections 14G, 14H, 14I, 14J, 14T, and 14U
2: Where an employee receives a notice given under subsection (1) Part 6 1987 No 129 s 36(1), (3)
14M: Employer's notice in relation to return to work and preference for appointment
Within 21 days after the beginning of an employee's leave under this Part, the employer of the employee must give to the employee a written notice stating—
a: the date on which the employee's leave under this Part will end; and
b: either,—
i: where the employer is able to keep the employee's position open until the end of the employee's leave under this Part, the date on which, if the employee decides to return to work at the end of the employee's leave under this Part, the employee will be required to return to work, being the date of the next working day after the date on which the employee's leave under this Part ends; or
ii: in any other case, the period of 26 weeks during which the employer will give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the employee's leave under this Part; and
c: where paragraph (b)(i)
i: the employee's obligations under section 14N
ii: the employee's rights under section 14T(1)(a) section 14T(2)(a)
iii: the employee's rights under section 14U
d: where paragraph (b)(ii)
i: the employee's rights under section 14T(1)(b) section 14T(2)(b)
ii: the employee's rights under section 14U 1987 No 129 s 38
4: Provisions applying in relation to employees taking leave under
Part 2 or Part 3
14N: Employee's notice in relation to return to work
1: This section applies to every employee who is on leave under Part 2 or Part 3
2: An employee must, not later than 21 days before the date on which the employee's leave under Part 2 or Part 3
3: An employee is not required to give a notice under subsection (2)
4: If an employee who is not required to give a notice under subsection (2) Part 2 or Part 3
5: If an employee who is not required to give a notice under subsection (2) Part 2 or Part 3
a: that employee and the employee's employer must co-operate in good faith for the purpose of agreeing on arrangements for the employee's return to work; but
b: if the employee and the employee's employer cannot agree on arrangements for the employee's return to work, the employee must give to the employee's employer not less than 7 days' notice in writing of the date on which the employee will be returning to work. 1987 No 129 s 39(1)
14O: Presumption that employee's position can be kept open
1: Where an employee takes a period of leave under Part 2 or Part 3 Part 2 or Part 3
a: because a temporary replacement is not reasonably practicable due to the key position occupied within the employer's enterprise by the employee; or
b: because of the occurrence of a redundancy situation.
2: In determining whether or not a position is a key position for the purposes of subsection (l)(a)
a: the size of the employer's enterprise; and
b: the training period or skills required in the job. 1987 No 129 s 41(1), (2)
14P: Employer's obligations in respect of remuneration and holiday pay
1: Subject to subsection (2) Part 2 or Part 3
a: any period of the employee's leave under Part 2 or Part 3
b: any period during which the employee is entitled under this Act, following any period of leave under Part 2 or Part 3
2: If an employee becomes entitled to an annual holiday on pay during—
a: a period of leave under Part 2 or Part 3
b: a period of preference in obtaining employment; or
c: the period of 12 months commencing with the date on which the employee returns to work after a period of leave under Part 2 or Part 3 the employee is, despite anything in section 21 of the Holidays Act 2003 1987 No 129 s 42
14Q: Power to increase entitlement to holiday pay
Any employment agreement may, in addressing the matter of holiday pay for an employee taking any period of leave under Part 2 or Part 3 section 14P(2) 1987 No 129 s 72
14R: Continuity of employment
Where an employee resumes service with the same employer at the end of a period of leave under Part 2 or Part 3 Part 2 or Part 3
a: the employee's service, for the purpose of any rights and benefits that are conditional on unbroken service, are not broken—
i: by the taking of leave under Part 2 or Part 3
ii: by the employee being without a position in the employer's service during part of the period of preference; or
iii: by both; and
b: any period during which the employee was on leave under Part 2 or Part 3 Part 2 or Part 3
i: subject to section 14P
ii: subject to section 14S 1987 No 129 s 43
14S: Contributions to superannuation schemes
Nothing in section 14R(b)(ii)
a: entitles an employee to have any period counted as service for the purposes of a superannuation scheme if the employee is required to pay contributions in respect of that period and has not done so; or
b: relieves an employee from any obligation under a superannuation scheme to pay contributions in respect of any period during which the employee is on leave under Part 2 or Part 3 Part 2 or Part 3 1987 No 129 s 44
14T: Early ending of leave under
Part 2 or Part 3
1: Subject to subsection (2) Part 2 or Part 3
a: if the employee's position is being kept open by the employer, choose, if the employer consents, to end the leave under Part 2 or Part 3 Part 2 or Part 3
b: in any other case, choose, if the employer consents, to end the leave under Part 2 or Part 3
2: Where an employee wishes,—
a: pursuant to subsection (1)(a) Part 2 or Part 3
b: pursuant to subsection (1)(b) Part 2 or Part 3 the employee must give to the employer not less than 21 days' notice in writing of the date on which the employee wishes to return to work or begin the period of preference, as the case may be. 1987 No 129 ss 39(2), 45(1)(e)
14U: Extension of leave under
Part 2 or Part 3
1: Subject to subsection (2) Part 2 or Part 3 section 39 or section 40 of the Defence Act 1990 Part 2 or Part 3 Part 2 or Part 3
2: Without limiting the right of an employee to take a period of leave other than leave under Part 3 subsection (1) Part 3 1987 No 129 s 45(3), (4)
14V: Failure to return to work
If an employee who takes up leave under Part 2 or Part 3
a: fails, without good cause, to return to work at the end of the period of leave; or
b: informs the employer, before the end of the period of leave, that the employee has decided not to return to work at the end of the period of leave,— the employee's employment is, subject to any agreement between the employer and the employee, to be deemed to have been at an end as from the day on which the period of leave began. 1987 No 129 s 46
14W: Failure to accept employment
If an employee who has taken leave under Part 2 or Part 3 Part 2 or Part 3 Part 2 or Part 3 Part 2 or Part 3 1987 No 129 s 47
14X: Employees employed to replace employees on leave under
Part 2 or Part 3 Where a temporary employee is employed to replace an employee who is on leave under Part 2 or Part 3
a: that the temporary employee is being employed on a temporary basis in the place of an employee who is on leave under Part 2 or Part 3
b: that the employee may return to work, in accordance with section 14T Part 2 or Part 3 1987 No 129 s 48
5: Protection of employment
14Y: Termination of employment and discrimination prohibited
1: No employer may terminate the employment of any employee, or discriminate against any employee in relation to his or her employment, on the grounds that—
a: the employee has indicated that the employee wishes to take volunteers leave; or
b: the employee is, or has been, a member of the territorial forces or the reserve forces; or
c: the employee, being a member of the territorial forces or the reserve forces, is entitled, or may become entitled, to take volunteers leave; or
d: the employee is on volunteers leave; or
e: the employee has taken volunteers leave.
2: It is not a contravention of subsection (1)
a: for a substantial reason not related to the employee's rights under this Act; or
b: with the employee's consent. 1987 No 129 ss 49, 54(c); Defence Reserve Service (Protection) Act 2001 (Commonwealth of Australia) s 16(1)(c), (2)
14Z: Special defences relating to termination of employment
Where—
a: it is alleged in any proceedings under this Act that an employer has, in contravention of section 14Y(1)
b: it is proved in those proceedings that the employer terminated the employee's employment either—
i: during the employee's absence on volunteers leave; or
ii: during the period of 26 weeks beginning with the day on which any period of the employee's volunteers leave ended,— the defences set out in sections 14ZA and 14ZB 1987 No 129 s 50
14ZA: Special defences relating to termination of employment during volunteers leave
Where the termination of an employee's employment is proved to have taken place during the employee's absence on volunteers leave, it is a defence for the employer to prove—
a: that, on the ground of the occurrence of a redundancy situation that occurred in the employer's business after the employer gave the employee notice in terms of section 14E(1)(c)(i) or section 14L(1)(c)(i)
b: that the employer terminated the employee's employment on account of a redundancy situation of such nature that there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's volunteers leave; and
c: that the employer had not, in the period commencing with the beginning of the employee's volunteers leave and ending with the termination of the employee's employment, prejudicially affected either the employee's seniority or the employee's superannuation rights. 1987 No 129 s 51
14ZB: Special defence relating to termination of employment during 26 weeks following volunteers leave
Where the termination of an employee's employment is proved to have taken place during the period of 26 weeks beginning with the day after the date on which any period of the employee's volunteers leave ended, it is a defence for the employer to prove—
a: the matters specified in paragraphs (b) and (c) of section 14ZA
b: that, during the period between the end of the period of the employee's volunteers leave and the termination of the employee's employment, the employer had (despite being prepared to accord the employee preference over other applicants) been unable to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's period of volunteers leave. 1987 No 129 s 52
14ZC: Redundancy payments not affected
Nothing in this Act affects any redundancy payment payable pursuant to the provisions of any Act or of any order or employment agreement. 1987 No 129 s 53
14ZD: Discrimination
1: For the purposes of section 14Y(1) section 14Y(1)
a: refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
b: subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be subjected to such detriment.
2: For the purposes of this section, detriment
a: includes anything that has a detrimental effect on the employee's employment, job performance, or job satisfaction; but
b: does not include termination of the employee's employment. 2000 No 24 s 104(l)(b),(2); Defence Reserve Service (Protection) Act 2001(Commonwealth of Australia) s 16(1)(a),(b),(2)
6: Remedies available to employees
14ZE: Interim order
1: Where any employee alleges that the employee's employer has, within the preceding 2 months and in contravention of section 14Y(l)
2: Subject to subsection (3) subsection (1)
3: An interim order made under subsection (1) sections 14ZG to 14ZL
4: An officer of the Employment Relations Authority must send a copy of the interim order and of every decision renewing the interim order to the employer by registered letter. 1987 No 129 s 55
14ZF: Volunteers leave complaints
1: Where any employee alleges that the employee's employer—
a: is not justified in stating, in the notice given to the employee under section 14E or section 14L
b: has, in contravention of section 14Y(1)
c: has taken other action, or has omitted to do something, that affects, to the employee's disadvantage, the employee's rights and benefits in respect of volunteers leave; or
d: has, in contravention of section 14Y(l) that allegation is a volunteers leave complaint to which this section applies, and the employee may use, in respect of that volunteers leave complaint, the procedures provided in sections 14ZG to 14ZL
2: A volunteers leave complaint to which this section applies may not be made—
a: after the expiration of 26 weeks from the date on which the subject matter of the complaint arose; or
b: after the expiration of 8 weeks from the expiry of any period of volunteers leave taken by the employee,—whichever is the later.
3: The procedures provided in sections 14ZG to 14ZL section 14ZE
4: A volunteers leave complaint to which this section applies is not a personal grievance within the meaning of the Employment Relations Act 2000 1987 No 129 s 56
14ZG: Procedures for settlement of volunteers leave complaints
1: The procedures for the settlement of a volunteers leave complaint must be in accordance with this section and sections 14ZH to 14ZL
2: As soon as practicable after a volunteers leave complaint arises, the employee must submit the complaint to the employee's immediate supervisor, affording the immediate supervisor an opportunity to remedy the cause of the complaint, the intent being that it is desirable, if the circumstances permit it, to settle the complaint rapidly and as near as possible to the point of origin.
3: Where any such attempt at settlement has failed, or where the complaint is of such a nature that a direct discussion between the employee and the employee's immediate supervisor would be inappropriate, the employee must either—
a: notify a duly authorised representative of any union to which the employee belongs or could belong; or
b: where the employee elects to act on his or her own behalf or to appoint an agent or barrister or solicitor to act on his or her behalf, forthwith take the matter up, or arrange for that agent or barrister or solicitor, as the case may be, to take the matter up on his or her behalf, with the employer or the representative of the employer.
4: Where the person notified under subsection (3)(a)
5: If the matter is not disposed of in discussion with the employer or the representative of the employer, the complaint must be reduced to writing in a statement setting out the facts relied on. The statement establishes the nature of the employee's complaint, and of the issues, for all subsequent consideration of the case. 1987 No 129 s 57
14ZH: Power to refer complaint to Employment Relations Authority
1: Where a volunteers leave complaint is not disposed of between the parties, it may be referred to the Employment Relations Authority.
2: The Employment Relations Authority must, subject to any decision to provide mediation services, proceed to hear and determine the complaint and, in doing so, must consider—
a: the written statement of the complaint required by section 14ZG(5)
b: any evidence or submissions given by or on behalf of the parties; and
c: such other matters as the Employment Relations Authority thinks fit. 1987 No 129 s 58
14ZI: Role of institutions
Where any volunteers leave complaint comes before the Employment Relations Authority, sections 177 to 184 of the Employment Relations Act 2000 sections 214 and 215 of that Act 1987 No 129 s 59
14ZJ: Duty to promote settlement
It is the duty of every party to a volunteers leave complaint—
a: to promote the settlement of the complaint under the procedures provided in sections 14ZH to 14ZL
b: to abstain from any action that might impede the effective functioning of the procedures. 1987 No 129 s 64
14ZK: Remedies
Where a volunteers leave complaint comes before the Employment Relations Authority, any determination of the Employment Relations Authority on that complaint may, if it includes a finding that any of the provisions of this Act have been breached by the employer, provide for any one or more of the following:
a: the reinstatement of the employee in the employee's former position or in a position that is not less advantageous to the employee:
b: the reimbursement to the employee of a sum equal to the whole or any part of any wages lost by the employee:
c: the payment to the employee of compensation by the employer. 1987 No 129 s 65
14ZL: Reinstatement
Where the remedy of reinstatement is provided by the Employment Relations Authority or the Employment Court, the employee must be reinstated immediately or on such date as is specified by the Employment Relations Authority or the Employment Court and, despite any appeal against the determination of the Employment Relations Authority or the Employment Court, the provisions for reinstatement remain in full force pending the determination of the appeal. 1987 No 129 s 66
14ZM: Non-compliance with formal requirements
1: An employer must not unreasonably refuse to allow an employee to exercise any rights and benefits in respect of volunteers leave that the employee would be entitled to exercise but for an irregularity.
2: In this section, irregularity
a: omitting to do something required by or under this Act or under the alternative provision under which the leave is taken; or
b: doing something required by or under this Act or the alternative provision under which the leave is taken before or after the time when it is required to be done; or
c: otherwise doing anything irregularly in matter of form.
3: An employee or an employer, or any person acting on behalf of an employee or employer, may apply to the Employment Relations Authority or the Employment Court for relief in respect of an irregularity.
4: The Employment Relations Authority or the Employment Court must grant relief to an employee in respect of a failure to comply with the notice requirements of this Act or of the alternative provision under which the leave is taken if satisfied that—
a: the employee's failure to comply with the notice requirements was in good faith; and
b: the extent to which the employee did or did not comply with the notice requirements was reasonable in all of the circumstances of the case.
5: The Employment Relations Authority or the Employment Court may grant relief in respect of any other irregularity if it thinks it is reasonable to do so, having regard to the nature of the irregularity, the good faith or otherwise of the parties, and any other matters it thinks proper.
6: The Employment Relations Authority or the Employment Court may grant relief—
a: by amending or waiving the irregularity, extending the time within which anything is to be or may be done, confirming the right of the employee to exercise rights and benefits in respect of volunteers leave, or granting any other relief that is reasonable:
b: subject to such terms, if any, as the Employment Court, in the circumstances of each case, thinks fit. 1987 No 129 s 68
14ZN: Enforcement of judgments
1: A certificate signed by an officer of the Employment Relations Authority or the Registrar of the Employment Court specifying the amount payable under any order for the payment of money made under this Act by the Employment Relations Authority or the Employment Court, and the persons by whom and to whom it is payable, may be filed in any District Court, and, subject to subsection (2)
2: No proceedings may be taken under the Imprisonment for Debt Limitation Act 1908 1987 No 129 s 70
14ZO: Role of Labour Inspectors
1: A Labour Inspector may,—
a: in relation to an employee's entitlement to leave under section 14B section 39 or section 40 of the Defence Act 1990
b: in relation to an employee's eligibility for leave under Part 3 section 14ZP
c: serve a demand notice as provided in section 14ZQ
d: otherwise enforce the rights and benefits in respect of volunteers leave.
2: A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the employee and the employer.
3: The consequences of a determination are that it is prima facie evidence of the matter determined. 1987 No 129 s 70A
14ZP: Eligibility criteria based on average hours of work and allowing for periods of authorised leave
1: An employee is treated as being in the employment of the same employer for at least an average of 10 hours a week during a 12-month period if the employee is in the employment of that employer—
a: no less than an average of 10 hours a week during that period; and
b: either no less than 1 hour in every week during that period or no less than 40 hours in every month during that period.
2: An employee is treated as being in the employment of an employer for an hour, despite being absent from work, if the employee would normally have been at work for that employer for that hour but is—
a: absent on leave with pay for that hour; or
b: on leave without pay (other than volunteers leave) with the employer's agreement for that hour; or
c: entitled to a payment of weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001
d: on parental leave (within the meaning of the Parental Leave and Employment Protection Act 1987
e: absent because of any other circumstances that are considered by a Labour Inspector not to disrupt the normal pattern of the employee's employment.
3: The hours that the employee would normally have been at work must be calculated—
a: in accordance with the terms of the employee's employment; or
b: by reference to the employee's hours of work before any period of leave without pay began, in the case of a period of leave without pay that started longer than 12 months ago.
4: Week 1987 No 129 s 72A
14ZQ: Demand notice
1: A Labour Inspector may serve on an employer a demand notice, in the prescribed form, if—
a: either—
i: an employee makes a complaint to the Labour Inspector that an employer has denied the employee's entitlement to take volunteers leave in a case where the Labour Inspector has previously made a determination that the employee is entitled to take leave; or
ii: the Labour Inspector believes on reasonable grounds that an employer has denied the employee's entitlement to take volunteers leave; and
b: the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector's belief; and
c: the Labour Inspector, after considering any comments made by the employer under paragraph (b)
d: the Labour Inspector is satisfied that the employer is not prepared to acknowledge the employee's entitlement to volunteers leave in a reasonable manner or within a reasonable time.
2: A demand notice must be served—
a: by giving it to the employer concerned; or
b: if the employer does not accept the demand notice, by leaving it in the employer's presence and drawing the employer's attention to it. 1987 No 129 s 70B
14ZR: Objections to determination or demand notice
1: An employer or an employee may lodge with the Employment Relations Authority an objection to a determination or a demand notice.
2: An objection must be lodged with the Authority within 28 days after the determination or demand notice is served on the employer or employee who makes the objection.
3: A demand notice has the consequences specified in section 14ZS
a: if no objection is lodged before the close of the period specified in subsection (2)
b: if any objection lodged before the close of the period specified in subsection (2) 1987 No 129 s 70C
14ZS: Consequences of demand notice
The consequences of a demand notice are that it—
a: imposes a legal requirement on the employer to comply with it; and
b: is prima facie evidence that the employee has the entitlement specified in the notice; and
c: may be enforced by the making by the Employment Relations Authority of a compliance order under section 137 of the Employment Relations Act 2000 1987 No 129 s 70D
14ZT: Authority to determine entitlement to volunteers leave on objection
The function of the Employment Relations Authority in respect of an objection is to determine whether or not the employee has the entitlement specified in the determination or demand notice. 1987 No 129 s 70E
14ZU: Withdrawal of demand notice
A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not prevent another demand notice being served in relation to the same matter. 1987 No 129 s 70F
14ZV: Procedures available to State employees
Nothing in this Act limits the procedures by which State employees may enforce their conditions of employment and those procedures may be used, where appropriate, to enforce the rights conferred on State employees by this Act. 1987 No 129 s 71
7: Miscellaneous provisions
14ZW: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing forms for the purposes of this Act:
b: prescribing procedures and practices for the implementation of this Act:
c: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
14ZX: Compensation for employers
1: Regulations made under section 14ZW Part 3
2: The amount of the compensation that is payable to an employer, in respect of any one employee, is to be, in respect of the period during which the employee is on leave, an amount equal to the amount of the wages that the employer would be required to pay to that employee if that employee
a: were a member of the class of workers entitled to the highest rates of minimum wages payable under the Minimum Wage Act 1983
b: were continuing to work for the employer in that period; and
c: were paid, for the work that the employee would usually perform in that period for the employer and for the days or hours or both during which that work would usually be performed in that period by the employee for the employer, wages at the rates applicable to the employee's work under the Minimum Wage Act 1983
3: Compensation is not to be payable in respect of any period of leave that is 28 days or less.
13: Priority in bankruptcy or winding up of compensation ordered to be paid by employer
Section 15
a: by omitting the words to be paid under section 6 of this Act under section 14ZK of this Act
b: by inserting, after the words judgment for reimbursement or
14: New
Schedule 2 The principal Act is amended by adding the Schedule 2 set out in Schedule 2
15: Consequential amendments
The Acts specified in Schedule 3
16: Repeals
The enactments specified in Schedule 4