Domestic Violence - Victims' Protection Act 2018 - Rights and Obligations

Domestic Violence - Victims' Protection Act 2018 - Rights and Obligations

The Domestic Violence - Victims' Protection Act will come into effect on 1 April 2019. The legislation aims to enhance legal protections in the workplace for people affected by domestic violence by helping victims to stay employed and addressing discrimination stemming from domestic violence in the workplace. The Act brings a normally private matter into the working domain.

The new Act creates a new category of leave under the Holidays Act 2003, that is separate from annual holidays and sick leave entitlements and amends relevant sections of the Holidays Act 2003, Employment Relations Act 2000 and the Human Rights Act 1993.

   
Entitlement to 10 days' Domestic Violence Leave

The new law entitles employees affected by domestic violence up to 10 days of paid domestic violence leave per year.  Employees will be able to take this leave as needed to deal with the effects of domestic violence – in much the same way as sick leave and bereavement leave is already available and taken on an 'as required' basis (ie only as required).

An employee must notify their employer as early as possible before the employee starts work on the day they intend to take domestic violence leave or, if that is not practicable, as early as possible after that time.

   
Flexible Working Arrangements

Employees will also be entitled to request a variation of their working arrangements for up to two months. Employers must respond to this type of request urgently and within 10 working days. The variations can include changes to hours of work, location and duties of work. A request must be in writing and must include specific information prescribed in the legislation.

   
Adverse Treatment in Employment

The new law expressly prohibits an employee being treated adversely in their employment on the grounds that they are or are believed to be a person affected by domestic violence. Employees will have an available personal grievance or claim under the Human Rights Act 1993 if they have been treated adversely in their employment on the above grounds.

   
Who can Apply for Domestic Violence Leave and/or Flexible Working Arrangements?

The legislation covers people "affected by domestic violence".  The new entitlements are available to employees personally affected by domestic violence and also to employees caring for children who have been affected by domestic violence.

The meaning of domestic violence under the new law mirrors the phrase's meaning under the Domestic Violence Act 1995. A person is in a domestic relationship with another person if the person –

a)  Is a spouse or partner of the other person; or    
b)  Is a family member of the other person; or    
c)  Ordinarily shares a household with the other person; or    
d)  Has a close personal relationship with the other person.

Domestic violence is defined broadly. It means violence against a person by any other person with whom that person is, or has been, in a domestic relationship. Violence means physical, sexual or psychological abuse, including harassment, threats, intimidation and financial abuse.

   
When Does Entitlement to Domestic Violence Leave and/or Flexible Working Arrangements Arise?

An employee becomes entitled after:  

  • Six months' continuous employment; or  
  • Having worked an average of 10 hours a week and for no less than one hour per week or 40 hours per month.

The entitlements apply regardless of how long ago the domestic violence occurred, even if the violence occurred before the affected person became an employee.    

An employer and employee may agree that domestic violence leave be taken in advance and may be deducted from future periods of entitlement.

   
Proof of Domestic Violence

An employer may require proof that an employee is a person affected by domestic violence to be produced in order to grant domestic violence leave and/or flexible working arrangements. However, the employee will only be required to provide proof if their employer informs the employee of the requirement within three working days after receiving the request for leave or flexible working arrangements.  A failure to provide such proof without reasonable excuse will mean that an employer is not required to pay the employee for that domestic violence leave until such proof is provided.

The Act does not say how an employee can prove that they have suffered from domestic violence. This is likely to be problematic for employers and employees considering that domestic violence is not only physical violence, but sexual and psychological abuse as well. Employers will need to be particularly mindful of protecting and preserving the privacy, trust and confidence of their employees.

Similar legislation enacted in Australia which took effect in December 2018 may offer a guide as to acceptable proof. The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 specifies that the evidence must convince a reasonable person that the employee took the leave to deal with the impact of domestic violence.  Types of evidence can include documents issued by the police service, documents issued by a Court, domestic violence support service documents or a statutory declaration.

Employers will need to be mindful that the documentation identified above may not be available at the time that the leave request is made. The New Zealand Crime and Safety Survey: 2014 found that 76% of domestic or family violence incidents are not reported to the Police. This is despite incidences of domestic violence being on the rise. Statistics New Zealand found in 2016 that Police investigated 118,910 incidents of family violence - or about one every five minutes.

Workplaces can play an important role in preventing family violence through providing family-friendly inclusive environments and support for staff affected by family violence. The Ministry of Social Development has published a guide to identifying and supporting staff who are dealing with domestic violence which can be accessed at the link below:

Supporting Staff Affected by Family Violence Booklet    

The new legislation intends to increase employment protections and support individuals affected by domestic violence to enable them to stay in paid work. Employers do not need to introduce new policies or incorporate any of the legislative requirements into employment agreements. However, organisations will need to consider how they will practically deal with requests for domestic violence leave or flexible working arrangements due to domestic violence.    

If you have any queries or concerns about how your organisation will be affected by the new legislation, please contact:

Craig Andrews on (09) 306 6745 (candrews@mcveaghfleming.co.nz)    
John Burley on (09) 306 6741 (jburley@mcveaghfleming.co.nz)    
Karlene O'Halloran on (09) 306 6743 (kohalloran@mcveaghfleming.co.nz)    

If you are a person affected by domestic violence and wish to discuss applying for a Protection Order and/or a Parenting Order, please contact a member of our Family Law team.

Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)    
Jackie Dale on (09) 306 6747 (jdale@mcveaghfleming.co.nz)    
Rebecca Davies on (09) 306 6748 (rdavies@mcveaghfleming.co.nz)    
Kate Thompson on (09) 306 6737 (kthompson@mcveaghfleming.co.nz)    

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Domestic Violence

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© McVeagh Fleming 2019

This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied    upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.