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Domestic Violence and the Employer

Photo by Kat J on Unsplash

The Domestic Violence - Victims' Protection Act 2018 (the Act) gained Royal assent on 30 July 2018 and will come into force on and from 1 April 2019. This piece of legislation will have an impact on every employer in New Zealand. Here are some of the key elements of the Act and what they mean for employers.

Employees who have been affected by domestic violence will have the statutory right to make, or have made on their behalf, a request for a variation to their working arrangements.

In addition to what is currently provided for by the Employment Relations Act 2000 (ERA), these employees will be able to request the following variations to their working arrangements;

  • the location of their workplace

  • the duties they perform

  • the extent of their contact details that they must provide to their employer; and

  • any other term of their employment agreement not already covered by the above or the current Section 69AAA of the Employment Relations Act 2000 (which covers hours of work, days of work and place of work) and that in the employee's view needs variation to enable the employee to deal with the effects of being a person affected by domestic violence.

The Act defines a "person affected by domestic violence" as someone who is either both or one of the following:

  • A person against whom any other person inflicts, or has inflicted, domestic violence;

  • A person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence.

Under the Act, an employee will be able to request either a short-term variation (which is set as being 2 months or shorter) to their working arrangements under a new Part 6AB of the ERA, or a permanent or longer than 2-month temporary variation under Part 6AA of the ERA - this part relates to flexible working arrangements.

Employers are required to deal with any such request as soon as possible but not later that 10 working days after receiving a request. Employers will be able to refuse a request if proof of domestic violence is required and has not been provided, or if the request cannot be accommodated reasonably on certain non-accommodation grounds.

If you do not deal with a request within 10 working days, the request may be referred to a Labour Inspector, mediation or the Employment Relations Authority.

An employee who is affected by domestic violence may make a request under Part 6AB of the ERA for variation to their working arrangements at any time for the purpose of assisting the employee deal with the effects of domestic violence on them. The request is not limited to domestic violence that occurred or occurs during the employee's employment with their current employer, nor does it prevent the employee requesting a permanent or fixed period variation of longer than 2 months.

As with any variation, the employee must make their request for a variation in writing and must state their name, the date on which the request is being made and that their request is being made under Part 6AA of the ERA. The employee must also specify the variation they are seeking and the period of time for which it is being requested, the date they want it to take effect (and if applicable when it will end). The employee must also specify how, in their view, the variation will assist them deal with the effects of domestic violence and explain, in their view, what, if any, changes the employer may need to make to the employer's arrangements if the request is approved.

In addition to requesting a variation to working arrangements, the Act also makes amendments to the Holidays Act 2003 by inserting the right for an employee to apply for domestic violence leave to assist them deal with the effects of domestic violence.

This amendment entitles an employee to take up to 10 days' domestic violence leave after they have completed six months' current continuous employment with their employer. Employers must provide domestic leave to an eligible employee for the 12-month period of continuous employment beginning from the end of the 6-month anniversary of commencing their employment and each subsequent 12-month period of employment, provided they work at least an average of 10 hours per week in the period AND no less than 1 hour in every week during that period or no less than 40 hours per month in the period.

Any domestic violence leave that is not taken DOES NOT carry forward from one 12-month period to the next, so does not accumulate.

McKone Consultancy can assist you in meeting your obligations for requests for variations to working arrangements under the Act. Also watch out for our video Blog in which Director Tony McKone will talk through the workings of these changes.

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