Education Leave and what to do if you are approached for it!

Summary

We hear that a number of centres may have been approached to provide “Education Leave” for their union members. This article explains how this works, your obligations and your rights.

Employment Relations Education Leave is its own type of paid leave entitlement (it cannot be taken annual leave). It's paid in the same way as sick leave and bereavement leave (usually relevant daily pay). It is for union members and is available to participate in employment relations short courses. The courses have to be approved.

A union, such as NZEI, is required to give notice of allocated education leave by 1 April each year (unless otherwise agreed in a collective agreement). If NZEI only give notice to a centre of education leave on part-way through a year, for example 9 June 2021, some of the education leave is forfeited and the staff member’s allocation is reduced.

The relevant employee will still need to give appropriate 14 days' notice if they wish to take education leave and this can be declined if it unreasonably disrupts the centre’s business, for example maintaining ratio in the midst of a teacher shortage.

Employment Relations Education Leave

The Employment Relations Act provides for employment relations education leave (education leave) for employees who are members of a union (eligible employee) to have leave from work to attend approved education courses. The purpose of this leave is to upskill employees in employment relations matters in order to improve the relationship between unions, employees and employers.

Education leave is a unique form of leave and should be paid at the employee's relevant daily pay (as defined in section 9 of the Holidays Act 2003) or average daily pay (as defined in section 9A of the Holidays Act). This is the same as payment for sick leave, bereavement leave, public holidays etc. Education leave cannot be deducted from an employee's accrued annual leave entitlements.

Calculating education leave (sections 73 & 74)

Unions are entitled to allocate a maximum of 5 days education leave per year (1 March to the last day of February unless otherwise stated in a relevant collective employment agreement) for each eligible employee, unless the employer agrees to more. Unused education leave does not carry over, unless the employer agrees.

The number of education leave days a union is entitled to allocate in respect of an employer is based on the number of full-time equivalent (FTE) eligible employees as at the last day in February (unless the relevant collective employment agreement sets out a different specified date). An eligible employee who normally works 30 hours or more each week is counted as 1 FTE, and an eligible employee who normally works less than 30 hours each week is counted as 0.5 FTE.

Section 74 of the Employment Relations Act provides the following calculation for the maximum number of days of education leave that a union is entitled to allocate:

# of eligible employees Max days of education leave
1-5 3
6-50 5
51-280 1 day for every 8 full-time equivalent eligible employees or part of that number
281 +35 days plus 5 days for every 100 full-time equivalent eligible employees or part of that number that exceeds 280

 

Notice requirements (sections 75, 77 & 79)

Unions are required to give notice to affected employers of the maximum number of education leave days, with details of the calculation, for eligible employees, by 1 April each year (unless the collective employment agreement provides otherwise). A failure to give complete and timely notice will result in a deduction of one-twelfth of the education leave for each complete month that the failure continues. Unions allocate education leave to eligible employees by giving notice to the employee, and providing a copy to the employer, informing the employee of their entitlements in respect of the allocated education leave days.

Eligible employees (or unions on the employee’s behalf) are required to tell their employer no later than 14 days before they intend to take education leave. They must tell the employer the proposed dates for education leave and the employment relations education they propose to undertake while on leave. An employer may refuse to allow an eligible employee to take education leave if the employer is satisfied, on reasonable grounds, that it would unreasonably disrupt the employer's business.

Worked Example

NZEI Te Riu Roa (NZEI) gave notice of education leave for one eligible employee at “My Lovely Centre” on 9 June 2021. NZEI has calculated that they can allocate a maximum of 3 days education leave for that employee. However, pursuant to section 75 of the Employment Relations Act, NZEI has failed to give notice within 1 month after the specified date (1 April) and therefore must forfeit two-twelths of the education leave for the period from 1 April – 1 June. On that basis, the amount to be allocated is 2.5 days, rather than the 3 days claimed.

The Centre should respond to NZEI clarifying that they are only entitled to allocate 2.5 days because of the failure to give notice by the specified date. This will ensure no inference can be drawn that My Lovely Centre agrees to the employee taking 3 days education leave.

If the eligible employee chooses to take their education leave, by giving 14 days' notice, My Lovely Centre will be required to pay the eligible employee up to 2.5 days of education leave at their relevant daily pay (or average daily pay, if relevant). The centre will be expected to arrange for cover for the time that the eligible employee is away from the centre. If the centre cannot find cover despite making reasonable efforts, it may be able to refuse to allow the eligible employee to take education leave. However, the centre would likely be expected to agree to another time for the eligible employee to take their education leave if possible.

If you have any questions or queries concerning Education Leave, or any other employment issue, as an ECC member you are entitled to access our Employer’s Help Line on 0800 742 742 option 4 to talk to a senior associate at Buddle Findlay.