Victims' Protection Bill
Employers are familiar with the traditional types of leave available to their employees: Annual Holidays, Public Holidays (and Alternative Holidays), Sick Leave, and Bereavement Leave.
The Domestic Violence – Victims’ Protection Bill (which passed its third reading on 25 July 2018 and will become law) introduces a new leave entitlement: Domestic Violence Leave.
Domestic Violence Leave
An employee may take up to 10 days paid Domestic Violence Leave per year if they are affected by domestic violence. It does not matter how long ago the domestic violence occurred (or even if the domestic violence occurred before the person became an employee).
Who is “Affected by Domestic Violence”
A person is “affected by domestic violence” if:
- domestic violence has been, or is being, inflicted against them, or
- they live with a child who has experienced domestic violence,
- they don’t need to live with the child all of the time – it is enough if the child lives with them periodically.
What is Domestic Violence
Domestic Violence means physical, sexual, psychological, financial or economic abuse inflicted on a person by:
- their spouse or partner, or
- a family member, or
- someone whom they share a household with, or
- someone whom they have a close personal relationship with.
Domestic Violence against a child includes allowing that child to be put at real risk of seeing or hearing physical, sexual or psychological abuse of a family member, or someone whom the child shares a household with, or someone whom the child has a close personal relationship with.
An employee becomes entitled Domestic Violence Leave in the same way as Sick Leave (after 6 months’ current continuous employment). Employees are entitled to 10 days domestic violence leave each year. Unlike Sick Leave, Domestic Violence Leave does not carry forward or accumulate across years – it’s a use it or lose it entitlement.
An employee who intends to take Domestic Violence Leave must notify their employer as early as possible before the employee is due to start work (or, if that cannot be done, as early as possible).
An employer can require the employee to provide proof that they are affected by domestic violence. If the employer requires the employee to provide proof, and employee fails, without a reasonable excuse, to provide proof, then the employer is not required to pay for that Domestic Violence Leave until the employee provides proof.
The Domestic Violence – Victims’ Protection Bill also amends the Employment Relations Act 2000 to allow an employee who is affected by domestic violence to request a short term (less than two month) flexible working arrangement.
A flexible working arrangement could mean variations to the employee’s hours and days of work, place of work, duties, or any other term necessary to enable the employee to deal with the effects of being affected by domestic violence.
The request must be in writing, must specify the variation requested and how it will assist the employee, and must state that the request is made under Part 6AB of the Employment Relations Act 2000.
An employer must deal with the request within 10 working days after receiving it. If the employer wishes to require the employee to provide proof that they are affected by domestic violence, then the employer must inform the employee that they require that proof within three working days of receiving the request.
The Domestic Violence – Victims’ Protection Bill also introduces:
- a new personal grievance: that the employee has been treated adversely because the employee is (or is suspected/assumed/believed to be) a person affected by domestic violence, and
- a new form of discrimination under the Human Rights Act 1993: adverse treatment in employment of people affected by domestic violence.
These amendments come into force on 1 April 2019.
In our view, the introduction of flexible working for people affected by domestic violence, and the new personal grievance, are not significant changes. Victims of domestic violence can already request flexible working arrangements under Part 6AA of the Employment Relations Act 2000. Similarly, treating an employee adversely because they are affected by domestic violence would almost certainly be an unjustified action currently.
However, the introduction of Domestic Violence Leave is the most significant change to the Holidays Act since its introduction in 2003. As with all employment processes, employers must ensure that their processes are fair and reasonable and comply with the law.
If you have any questions about the Domestic Violence – Victims’ Protection Bill, please contact a member of our employment team: http://www.abmm.co.nz/our-expertise/employment.html