The Domestic Violence ­– Victims’ Protection Act 2018 is legislation intended to recognise that victims of domestic violence can be considerably assisted by some simple recognitions in the workplace. Maintaining employment is important to create stability and autonomy for the victim. The Act seeks to enforce employer-led assistance of those impacted by domestic violence victims. To meet this objective, the Act has reformed the Employment Relations Act 2000, the Holidays Act 2003 and the Human Rights Act 1993.

The Act has an important symbolic function. It signals to society that domestic violence will not be tolerated. The amendments to the following Acts highlight the aim to acknowledge domestic violence in New Zealand society and to create conversations about it.

Employment Relations Act

The Act reforms the Employment Relations Act (ERA) to include short-term flexible working arrangements. This allows victims of domestic violence to apply for a variation on their employment agreement for up to 2 months. Variations could include work hours, the location of work or whether the employee takes phone calls. There is also an option under the ERA to make these arrangements permanent.

Variation of an employment agreement can be crucial to the well-being of a domestic violence victim. The victim is able to note the changes they believe will assist them in combating the impacts of domestic violence. Where the employer is able to implement these variations the victim receives support.

Section 69ABC of the ERA details that, in order for a victim to make an application, they must provide in writing:

  • their name, the date of the request and that the application is under Part 6AB of the ERA.
  • the variation requested and the length of time it is requested for.
  • the date that the variation will begin and end.
  • how the variation will assist the employee to deal with the effects of domestic violence.
  • what changes the employer may need to make in order for the request to be accommodated if the request is approved.

An employer must work through the request no later than 10 working days following the request. It is best practice to work through a request as soon as possible.

An employer may also ask for proof of domestic violence to be provided. This should be requested as soon as possible after the flexible working arrangement is requested. It must be stipulated that this proof is required within 3 days of the request. The Act does not provide for a threshold of what proof would look like. This would be best developed through policy in the workplace.

The employers’ decision must be notified in writing. In this notification or before notification is given, the employer must provide the employee with information about specialist support services for domestic violence.

If an employer refuses to allow the variation, the grounds for the refusal and an explanation of the grounds much be given. Section 69ABF details grounds for refusal by an employer:

  • Requested proof was not produced within 10 working days of the request.
  • The request cannot be accommodated reasonably due to one or more of the non-accommodation grounds. These include:
    • inability to reorganise work among existing employees
    • inability to employ additional staff
    • a detrimental impact on quality will occur
    • a detrimental impact on performance will occur
    • there is an insufficient amount of work during the period the employee requests to work
    • there are structural changes planned
    • the burden of additional costs
    • there would be a detrimental impact on the ability to meet customer demand.
    • It is important to note that an employee can request these variations at any time, regardless of how long ago the domestic violence occurred. This includes when the domestic violence occurred prior to employment.

Holidays Act

The Act reforms the Holidays Act to include 10 days’ paid domestic violence leave. This allows for employees who are impacted by domestic violence to take leave for the purpose of organising their personal life. This could be used to tend to accommodation, to attend court or to get legal advice.

Entitlement to domestic violence leave aligns with other types of leave. The employee must have worked for a period of 6 months to induce entitlement. However, leave may be agreed to be taken in advance.

This leave entitlement is in addition to sick leave, bereavement leave and annual leave. Ten days is allocated every year­ – it does not accrue from year to year. All employees are entitled to use this leave when they need to address domestic violence issues. As with a request for flexible working arrangements, proof of domestic violence may be requested by the employer.

Human Rights Act

The Act reforms the Human Rights Act by introducing domestic violence as a ground for discrimination. This allows for a personal grievance to be raised if the issue of domestic violence has been used to discriminate against an employee. This alteration occurred in order to prevent employers treating prospective employees adversely due to the possible influence of domestic violence.

Policy reform

The Ministry of Innovation, Business and Employment has created a family violence policy builder. This is an online interactive tool that allows businesses to create a policy to inform and guide how domestic violence will be combated in the workplace. Workplaces may also need to develop privacy policies to ensure that reasons for leave or variation of employment are kept confidential.

It is clear that something needed to be put in place to address the alarming rate of domestic violence in New Zealand homes. The Domestic Violence – Victims’ Protection Act is aimed at providing a supportive environment for victims in the workplace. The introduction of the Act is a transition for employers that needs to be thought about and implemented in the work place carefully. For extra guidance on how this might impact your business, contact the employment lawyers at Bell & Co on (04) 499 4014.