And Not a Situation of National Interest Either
New Zealand Defence Reserve Force members are engaged in many aspects of Operation Protect. In particular, they form part of the NZDF security and management details at Managed Isolation and Quarantine facilities around the country. Many have taken leave from their normal work to help out. Defence Minister Peeni Henare sees no reason to invoke existing legislation to protect their civilian employment while they work on the COVID frontline. He should explain why.
The concern for the worker is simply expressed. Employee who is a reservist goes to help COVID response with employer’s blessing while workplace is in lockdown or restricted trading. Employer experiences tough times due to lockdown. Reservist finishes their time working for the country and returns to find they have been made redundant. There is legislation specifically designed to ensure this can’t happen. It’s called the Volunteers’ Employment Protection Act. It was substantially updated in 2004 by a Labour Government – unsurprising given that it is about workers’ rights. In its initial form, it was designed to give a reservist the same degree of protection provided under maternity leave provisions.
In June this year, The National Party Defence spokesman, Chris Penk, asked the Minister a set of written parliamentary questions as a result of anecdotal evidence that some reservists were being disadvantaged.
23210 (2021). Chris Penk to the Minister of Defence (03 Jun 2021): Are Defence Force Reserve members protected under the provisions of the Volunteers Employment Protection Act 1973 while serving on Operation Protect. If not, why not?
Hon Peeni Henare (Minister of Defence) replied: No, service on Operation Protect is considered neither “protected voluntary service or training” for the purposes of Part 1, nor service in time of war or emergency under Part 2, nor service in situation of national interest under Part 3.
If the current pandemic isn’t an emergency or a situation of national interest, then it is hard to imagine what might be! Henare was Civil Defence minister last year when a national state of emergency was declared due to COVID-19. That’s when the Defence Act should have been invoked. Here’s more:
23209 (2021). Chris Penk to the Minister of Defence (03 Jun 2021): Has Operation Protect been declared a Situation of National Interest under Section 50A of the Defence Act 1990. If not, why not?
Hon Peeni Henare (Minister of Defence) replied: No, as there has not been a requirement to mobilise the Defence Force Reserves.
Section 50A of the Defence Act is the enabling legislation for protecting volunteers’ employment. It is within his portfolio to take this to Cabinet. The Minister seems confused as to what he isn’t mobilising. The Reserve he seems to be referring to is the one that is comprised of former regulars who have a designated number of years’ reserve liability after they leave full-time service. They do no training and hold no uniforms nor equipment. A proclamation from the Governor-General is required to mobilise them. The Reservists working on Operation Protect are actually, in law, Territorial Forces. Legislation to formalise and clarify these categories, the Defence Amendment Bill 2011, has languished at second reading since 2012.
There are numerous documents within NZDF seeking TF volunteers for work on Op Protect. Some are working as part-timers while others have been transferred on to short term regular force engagements.
I asked the Defence Minister, via his Press Secretary, for comment on the situation on 8 October and, in particular, how a Labour Government could reconcile itself with a situation where service personnel were vulnerable to losing their jobs while helping the country when the means to sort it out was right in front of them. At the time of publication, no comment had been supplied.
The legislation itself, however, is poor as I pointed out to the Select Committee during public submissions in 2003. But it may as well not exist at all if no government ever activates it to protect the employment of territorials and reservists. One potential reason for the reticence is that invoking the legislation might make the service operational – medals, veteran status and money. If that is the reason then the cynicism speaks for itself.
The Defence Employer Support Council, currently headed by Bevan Killick, is appointed by the Minister of Defence and is statutorily independent of the New Zealand Defence Force. Since the legislative amendment has not been passed, it is technically still called the Territorial Force Employer Support Council. It is a group of business people whose focus is to use their knowledge, networks and experience to engage with the employers of Reserve Force members and consequently make civilian life less lumpy for reservists. They should be a source of independent advice for the Minister. Their mission statement is:
To increase awareness and engagement between the New Zealand Defence Force, Civilian Employers and the wider Business Community.
I contacted Mr Killick to see what the DESC position was on this issue and also asked him whether there were plans afoot to fix the parlous state of reservist employment protection legislation. He forwarded my questions to the NZDF who replied that I would have to file an OIA request. Clearly, the DESC is not acting independently of the NZDF at all. The term ‘captured’ comes to mind.
After further prodding, Mr Killick replied 50 minutes before deadline as follows:
Thanks for your interest in the work of the DESC. We strive to works [sic] collaboratively with employers of reservists. We see the use of legislation as a last resort. The VEPA is administered by MBIE, not Defence. As such, we have completed a survey to understand the current issues and are progressing work in this area with the various parties. As such, we cannot speak for them and I understand NZDF is working with your enquiries in this regard.
The question must be asked – is the DESC any use at all beyond running awards ceremonies which could be done by the NZDF itself? Regular readers will know that I have previously criticised this group for being ‘missing in action’ on the things that really matter for reservist civilian employment. All carrot and no stick has been proven over decades to have little effect in protecting reservists’ jobs. They are better off getting pregnant!
Finally, I went back to the original author of the questions posed to Hon Henare, the National Party Spokesman on Defence and Veterans, Chris Penk.
“The Minister’s reaction beggars belief on a couple of counts. For one thing, the service of reserve personnel is being taken for granted in a way that’s frankly embarrassing. Their “day job” employment might be put on hold but shouldn’t be put on the line.
Second, how can the government possibly consider that the NZDF contribution to covid19 doesn’t equate to an “emergency” effort? It’s the textbook example, I would have thought. Mr Henare should retrospectively recognise Operation Protect as the emergency it is and not short change our reserve troops a day longer,” Mr Penk said.
New Zealand has all the mechanisms in place, albeit in a rudimentary form, to protect reservists’ civilian employment while deployed on Op Protect or any other need the nation has for them. An effective employer support council would be advising the minister to use those mechanisms. An effective defence force would be advising the minister likewise if it actually cared about its reservists rather than playing verbal dodgeball in answers to written parliamentary questions. And an effective defence minister would make sure he was better informed about the legislation he has responsibility for.
While the Chief Ombudsman has coverage of defence matters, they rarely make enquiries. This suggests that a specific Defence and Veterans ombudsman might provide a better option. However, employment problems for service personnel, both full and part time, have been around for a long time and are largely concealed by the unconscionable arrangement in law where the Chief of the Defence Force is both the employer and the employee advocate. The ultimate solution, I believe, lies in a Defence and Veterans’ Association operating in an advocacy role like the Police Association (although not as a union). This requires change to defence legislation. It is overdue.
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