Where any employee who is employed by any employer performs or undergoes any protected voluntary service or training for any period or periods, his employer shall be deemed to have granted him leave of absence for the period or periods:

Subject to the provisions of this Act as to holidays, the employer of any such employee shall not be obliged to pay him any remuneration for the period of leave of absence provided for by this section.

Where any employee presents himself to his employer at or before the end of any period of leave of absence to which he is entitled under section 4, the employer shall forthwith resume the employment of the employee in the occupation in which he was last employed before the leave of absence, and on terms and conditions not less favourable to him than those that would have been applicable to him if he had not performed or undergone the protected voluntary service or training:

Where an employee resumes service with the same employer at the end of a period of leave under this Part,—

Nothing in section 7A(b)(ii)—

For the purpose of ascertaining the rights of any employee to annual or periodical holidays or leave with pay, and the obligations of his employer in relation thereto, whether under the Holidays Act 2003 or otherwise, where the time served by the employee in the employment of that employer is interrupted by the employee’s protected voluntary service or training, the period of the leave of absence to which he is entitled under section 4 in respect of that service or training shall be deemed to be time served in that employment.

Where an employer is required to allow annual or periodical holidays or leave to any employee, the holidays or leave shall not, except at the request of the employee, be allowed at times comprised within any period of protected voluntary service or training.

Where any employee who is employed by any employer performs or undergoes any protected voluntary service or training, the rights of the employee to be allowed any day as a holiday on full pay during the period of that service or training, and the obligations of his employer in relation thereto, shall be ascertained as if the employee had ceased to be employed by the employer at the beginning of that service or training.

Where any employee volunteers for any protected voluntary service or training which will necessitate his absence from work, he shall notify his employer thereof not less than 14 days before undertaking that service or training.

Every person who fails to comply in any respect with the foregoing provisions of this section shall not have his then current employment protected under this Act.

Where any employee volunteers for any protected voluntary service or training in the Armed Forces, the employer may apply to a person appointed by the chief executive under subsection (2) for a postponement of that service or training upon the ground that the employee’s volunteering for that service or training will cause undue hardship to the employer.

The chief executive may from time to time appoint such person or persons as he thinks fit, whether or not an officer or officers of the department, for the purpose of determining applications for postponement under this section. Any such person who holds no other appointment as an officer or employee of the State services within the meaning of the Public Service Act 2020 may be paid, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if he were a member of a statutory board within the meaning of that Act.

The person to whom any application for postponement is made under subsection (1) may, after considering any statement of fact or any documentary or other evidence supplied to him or obtained by him,—

Every determination by a person appointed under subsection (1) shall be final.

A certificate of an authorised officer as to the duration of a person’s protected voluntary service or training shall be conclusive for the purposes of any proceedings under or for the purposes of this Act.

Every document purporting to be such a certificate as aforesaid or any other certificate authorised by this Act and to be signed by an authorised officer shall be received in evidence and shall, in the absence of proof to the contrary, be deemed to be such a certificate of an authorised officer; and in any proceedings under or for the purposes of this Act the production of a document purporting to be certified by or on behalf of an authorised officer to be a true copy of any such certificate as is mentioned in this subsection shall, in the absence of proof to the contrary, be sufficient evidence of the certificate.

In this section the term authorised officer means an officer of the Armed Forces nominated as an authorised officer for the purposes of this Act by the appropriate Chief of Service.

This Part applies to the following employees:

Except as otherwise provided in this Part, every employee is entitled to leave in accordance with this Part if that employee—

Leave under this Part begins—

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, called out, or is liable to be called out, for continuous service, either in New Zealand or elsewhere, that employee must, as soon as practicable, give written notice to the employee’s employer that the employee has been so called out or is liable to be so called out.

The notice must state, in addition, whether or not the employee wishes to take leave under this Part.

If the employee wishes to take leave under this Part, the notice must—

If a notice under subsection (1) contains a statement complying with subsection (3)(b)(ii), the employee must, as soon as practicable after the duration of the leave becomes known to the employee, give to the employee’s employer written notice of the duration of the leave.

If, after an employee has given to the employee’s employer a statement complying with subsection (3)(b)(i) or subsection (4), the duration of the employee’s leave is extended (other than with the consent of the employee’s employer), the employee must give to the employee’s employer, as soon as practicable, written notice of the extension of the duration of the leave.

Every employer who receives a notice under section 14D(1) that states that the employee wishes to take leave under this Part must, within 21 days after receipt of the notice, give to the employee who gave that notice a written notice in the prescribed form—

Where an employee receives a notice given under subsection (1) and the employee disputes any statement given in that notice, that employee may invoke any procedure set out in Part 6.

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—

This Part applies to every employee—

Except as otherwise provided in this Part, every employee is entitled to leave in accordance with this Part if that employee—

Leave taken under this Part must be taken in one continuous period not exceeding 12 months.

Leave under this Part may, by agreement between the employee and the employee’s employer, begin on any date.

An employee who wishes to take leave under this Part in order to undertake special service under section 50 of the Defence Act 1990 must give written notice to the employee’s employer of the employee’s wish to take that leave.

The notice must state the proposed date on which the employee wishes to commence leave, and the duration of the leave.

The notice must be given at least 28 days before the proposed date on which the employee wishes to commence leave.

Every employer who receives a notice under section 14K(1) must, within 21 days after receipt of the notice, give to the employee who gave that notice a written notice in the prescribed form—

Where an employee receives a notice given under subsection (1) and the employee disputes any statement given in that notice, that employee may invoke any procedure set out in Part 6.

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—

This section applies to every employee who is on leave under Part 2 or Part 3 and whose position is being kept open by the employer.

An employee must, not later than 21 days before the date on which the employee’s leave under Part 2 or Part 3 ends, give to his or her employer written notice stating whether or not the employee will be returning to work at the end of that leave.

An employee is not required to give a notice under subsection (2) if it is not reasonably practicable for the employee to give a notice under that subsection.

If an employee who is not required to give a notice under subsection (2) does not wish to return to work at the end of the employee’s leave under Part 2 or Part 3, that employee must, as soon as practicable, give to the employer written notice stating that the employee will not be returning to work at the end of that leave.

If an employee who is not required to give a notice under subsection (2) wishes to return to work at the end of the employee’s leave under Part 2 or Part 3,—

Where an employee takes a period of leave under Part 2 or Part 3, the employer is to be presumed in any proceedings under this Act, to be able to keep open for the employee, until the end of the employee’s leave under Part 2 or Part 3, the employee’s position in the employment of the employer unless, in any case where the period of leave is, or is likely to be, more than 4 weeks, the employer proves that the employee’s position cannot be kept open—

In determining whether or not a position is a key position for the purposes of subsection (1)(a), regard may be had, among other things, to—

Subject to subsection (2), the employer of an employee who takes leave under Part 2 or Part 3 is not obliged to pay that employee any remuneration for—

If an employee becomes entitled to an annual holiday on pay during—

the employee is, despite anything in section 21 of the Holidays Act 2003, entitled to holiday pay for that holiday only at the rate of the employee’s average weekly earnings for the 12 months immediately before the end of the last pay period before the annual holiday.

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, provide that the employee is entitled to holiday pay in respect of annual holidays, at the same rate as, or at a higher rate than, the rate referred to in section 14P(2).

Where an employee resumes service with the same employer at the end of a period of leave under Part 2 or Part 3 or while the employee is entitled, following leave under Part 2 or Part 3, to preference in obtaining employment with the employee’s employer,—

Nothing in section 14R(b)(ii)—

Subject to subsection (2), an employee who is on leave under Part 2 or Part 3 may,—

Where an employee wishes,—

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.

Subject to subsection (2), an employee who is on leave under Part 2 or Part 3 may, if the employer consents or if an extension of the leave is required as a consequence of a Proclamation under section 39 or section 40 of the Defence Act 1990, extend the leave under Part 2 or Part 3 until a specified date, which becomes the date on which the employee’s leave under Part 2 or Part 3 will end.

Without limiting the right of an employee to take a period of leave other than leave under Part 3, nothing in subsection (1) entitles an employee to extend any period of leave under Part 3 with the result that the period of leave exceeds 12 months.

If an employee who takes up leave under Part 2 or Part 3 and whose position is kept open by the employer—

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.

If an employee who has taken leave under Part 2 or Part 3 fails, without reasonable excuse, to take up, on the date specified by the employer or within 7 days thereafter, any position substantially similar to the position ordinarily held by the employee before taking leave under Part 2 or Part 3 that is offered to the employee by the employee’s employer during the period of 26 weeks beginning with the day after the date on which the period of leave under Part 2 or Part 3 ends, that employee’s employment is deemed to have been at an end as from the day on which the period of leave under Part 2 or Part 3 began.

Where a temporary employee is employed to replace an employee who is on leave under Part 2 or Part 3, the employer must, before employing the temporary employee, inform the temporary employee in writing—

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—

It is not a contravention of subsection (1) for an employer to terminate the employment of an employee—

Where—

the defences set out in sections 14ZA and 14ZB are available to the employer.

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—

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—

Nothing in this Act affects any redundancy payment payable pursuant to the provisions of any Act or of any order or employment agreement.

For the purposes of section 14Y(1), an employee is discriminated against in that employee’s employment if the employee’s employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 14Y(1),—

For the purposes of this section, detriment—

Where any employee alleges that the employee’s employer has, within the preceding 2 months and in contravention of section 14Y(l), terminated the employee’s employment or given the employee notice terminating the employee’s employment, the employee may apply to the Employment Relations Authority for an interim order reinstating the employee in the employee’s position or cancelling the notice terminating the employee’s employment.

Subject to subsection (3), every interim order made under subsection (1) expires on a date to be specified in the order, being a date not later than 26 weeks after the date on which the order is made.

An interim order made under subsection (1) may be renewed by the Employment Relations Authority from time to time on the application of the employee in whose favour it is made if the Employment Relations Authority is satisfied that the employee is taking reasonable steps to use the procedures available to the employee under sections 14ZG to 14ZL.

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.

Where any employee alleges that the employee’s employer—

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.

A volunteers leave complaint to which this section applies may not be made—

whichever is the later.

The procedures provided in sections 14ZG to 14ZL may be used before or after the making of an interim order under section 14ZE.

A volunteers leave complaint to which this section applies is not a personal grievance within the meaning of the Employment Relations Act 2000.

The procedures for the settlement of a volunteers leave complaint must be in accordance with this section and sections 14ZH to 14ZL.

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.

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—

Where the person notified under subsection (3)(a) considers that there is some substance in the volunteers leave complaint, that person must forthwith take the matter up with the employer or the representative of the employer.

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.

Where a volunteers leave complaint is not disposed of between the parties, it may be referred to the Employment Relations Authority.

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—

Where any volunteers leave complaint comes before the Employment Relations Authority, sections 177 to 184 of the Employment Relations Act 2000 apply in relation to that volunteers leave complaint and sections 214 and 215 of that Act apply in relation to appeals to the Court of Appeal.

It is the duty of every party to a volunteers leave complaint—

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 1 or more of the following:

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.

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.

In this section, irregularity means—

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.

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—

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.

The Employment Relations Authority or the Employment Court may grant relief—

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 the District Court, and, subject to subsection (2), is then enforceable in the same manner as a judgment given by the District Court in an action for the recovery of a debt.

No proceedings may be taken under the Imprisonment for Debt Limitation Act 1908 against any person for failing or refusing to pay any penalty imposed on that person under this Act.

A Labour Inspector may,—

A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the employee and the employer.

The consequences of a determination are that it is prima facie evidence of the matter determined.

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—

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—

The hours that the employee would normally have been at work must be calculated—

Week means the employee’s ordinary working week.

A Labour Inspector may serve on an employer a demand notice, in the prescribed form, if—

A demand notice must be served—

An employer or an employee may lodge with the Employment Relations Authority an objection to a determination or a demand notice.

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.

A demand notice has the consequences specified in section 14ZS—

The consequences of a demand notice are that it—

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.

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.

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.

The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Regulations made under section 14ZW may provide for payments, by way of compensation, to be made to employers whose employees, being employees to whom Part 3 applies, are granted leave under that Part.

The amount of the compensation that is payable to an employer, in respect of any 1 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—

Compensation is not to be payable in respect of any period of leave that is 28 days or less.

Upon the commencement of this Act no person shall be under any further liability to perform or undergo compulsory military training or service, or to register, or to submit to medical examination, by reason of any liability that arose under the National Military Service Act 1961.

The enactments specified in the Schedule are hereby consequentially repealed.

Amendment(s) incorporated in the Act(s).

The Defence Act 1971 is hereby amended—