Part 2 of a multi-part series on New Zealand’s Defence Reserve Force. In Part 1, I discussed the disturbingly low Reserve Force numbers confronting the country. In this post, I begin the examination of what can be done to address it commencing with the legislation that purportedly protects the civilian jobs of Reservists while they are undertaking service in the Defence Force.
The piece of legislation providing employment protection for members of the NZ Defence Reserve Force was substantially amended by the Volunteers Employment Protection Amendment Act 2004. Its 1973 predecessor was a hangover from the days of transition from balloted National Service to a fully volunteer force. It did little more than provide protection for territorials to attend initial training and subsequent annual camps. Although the 2004 amendment act was a vast improvement on the primary legislation it amended, it was out of date the day it was enacted.
Matters came to a head when NZ joined the coalition force (INTERFET followed by UNTAET) sent to bring peace to East Timor. This country couldn’t sustain the operation using full-time elements alone. Other countries including Canada, Nepal and Ireland provided troops to flesh out the six NZ battalions deployed in six-month rotations from September 1999. Gunners, armoured corps troopers, engineers and a wide range of other Kiwi troops were ‘dismounted’ and served in infantry roles. It still wasn’t enough and territorial force volunteers were also called for. We responded in the hundreds. Many (including me) voluntarily took temporary reduction in rank to deploy. One of my unit’s Warrant Officers served as a Corporal!
It was about this time that the former Defence Minister, Hon Wayne Mapp, who was then a National Party MP in opposition had his private member’s bill drawn from the ballot. Dr Mapp was also a member of the Foreign Affairs, Defence & Trade Committee and it is worth noting that, so too, was the current Defence Minister, Hon Ron Mark.
As I raised at the time, the Labour Government of the day should have been embarrassed about the length of time they took to bring this into law. This bill was introduced on 17 Aug 2000 and referred to the Select Committee on 20 Sep that year. There it sat until on 18 March 2003, the Minister of Defence Hon Mark Burton, sent a Supplementary Order Paper to the Select Committee (effectively making Mapp’s Bill a Government Bill). Clearly, dog muzzling, prostitution reform and other like topics were considered more important than protecting the employment of the few that serve the country tirelessly. In the intervening three years, territorial numbers plummeted.
I made a lengthy submission to the Select Committee process (Simon Ewing-Jarvie Submission to Select Committee on Volunteers Employment Protection Amendment Bill – SOP – September 2003) which was dismissed in the report back to the House. As an aside, I was surprised to find that Ron Mark wasn’t at the hearings. Here’s a summary of the situation I wrote in May 2013.
- The VEPA refers to meanings in the Defence Act 1990 regarding Territorial Forces and Reserve Forces. The 2010 Defence Assessment wrote of the need to differentiate between volunteers (the former) and those with post-RF service liability (the latter). The latter are not volunteers, they have to be called up by proclamation and therefore they need to be covered by different legislation or merged into the former by law. (The Defence Amendment Bill 2011 languishes on the Order Paper and still shows Gerry Brownlee as the responsible Minister with Jonathan Coleman having introduced Supplementary Order Paper 477 in July 2014.)
- Section 3(d) states under the Act’s purpose“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 of the principal Act to take leave) take leave under Part 3 of the principal Act during a period specified in the national interest in an order made under section 50A of the Defence Act 1990. No such regulations have ever been passed.
- The Act only refers to employees. Obviously, a self-employed person can give themselves leave to serve but cannot bridge the financial gulf or keep their business afloat while they are away. Implementation of the regulations referred to above are vital as self-employed specialists are a major strength of the modern Reserve Force.
- The primary protections offered under the Act are in circumstances declared to be “in the National Interest”. This ignores the situation of a Reservist volunteering to fill a role within NZ to enable a full-time service person to deploy. Additionally, deployments that are not ‘declared’ (none have been ‘declared’ since this Act was passed) creates two classes of Reservist – those with protection under the VEPA and those without.
- The Act doesn’t cater for Reservist skills –needed from time to time- in areas of national interest where secrecy (eg in the case of cyber warfare) is required.
- There is no mention in the Act of the role of the Defence Force (or the Crown) in providing legal representation for Reservists who may need to bring actions against employers (who may also be the Crown). A young service person with a family to support who has returned from service to find their job gone is not in a financial position to hire a lawyer. The Defence Legal Service should provide this representation at no cost. Here, we also find the unconscionable arrangement whereby the Chief of the Defence Force is both employer and employee advocate.
This legislative process also introduced an amendment to the Defence Act (New Zealand Defence Amendment Act 2004) which described how the VEPA was initiated by Order in Council. It also required the Minister of Defence to raise a Territorial Force Employer Support Council. The TFESC, now referred to as the DESC, is tasked with advising the Minister and encouraging employers to support Reserve service.
The challenge set down is – which MP and party will take up this issue and future proof employment protection legislation before it is too late?
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