Law to protect domestic violence victims at work

3 May 2017

Two Bills currently before Parliament are set to make significant changes to the face of employment law.

One is intended to help victims of domestic violence in their employment. The other aims to allow employers to, through contract, remove the right of highly paid employees to bring personal grievances.

Green Party MP Jan Logie's Domestic Violence – Victims' Protection Bill had its first reading on International Women's Day, March 8.

The Bill progressed to Select Committee and submissions are now being considered.

Supporters of the Bill are motivated by the high levels of domestic violence in New Zealand and the devastating effect it can have on all areas of the lives of victims, most of which are women.

Domestic violence costs the country up to $7 billion a year.

This new Bill seeks to protect the employment of victims of domestic violence and empower them to escape their perpetrators.

Victims can take steps to get a 'domestic violence document' which is used as evidence to the employer that they are a domestic violence victim.

These employees will be allowed to request flexible working arrangements, such as working from a different location or unusual hours.

The definition of 'hazard' under the Health and Safety at Work Act would be updated to include a situation in which a person's behaviour stems from their being a victim of domestic violence, or someone who has inflicted domestic violence.

Employers must also have a policy on domestic violence.

The Human Rights Act will be amended so that being a victim of domestic violence is a prohibited ground of discrimination. Perhaps most significantly, employees may have up to 10 days paid leave after experiencing domestic violence.

This Bill involves a significant shift as it brings an issue that is typically very private into the work sphere.

The domestic violence leave would be paid for by employers.

While the objective of reducing the impact of domestic violence is honourable, many employers, certainly those with limited means, will query whether the employer should have the responsibility for personal matters placed on them.

Changes brought about by the Bill would apply the same to all employers.

Several large employers such as ANZ, The Warehouse, and the University of Auckland already have policies regarding domestic violence.

For small employers, having a policy on domestic violence might be a difficult thing for them to put in place.

Bills generated by smaller parties such as the Greens don't often become law, but this Bill has garnered significant support throughout Parliament.

One thing that may need to be addressed is that the Bill does not appear to place a limit on how many times within a given period an employee could claim the 10 days domestic violence leave.

Presumably there is no limit and employers might find this hard to accept.

A 2011 case from the Employment Relations Authority gives an example of how domestic violence can impact on an individual's employment.

An employee was offered employment at a trucking company by a manager who she met through her partner at the time.

Six months into her employment the employee's relationship with her partner ended following incidents of domestic violence against her.

From that point onward her manager, who remained a friend of the former partner, began treating the employee badly and would frequently address her by swearing directly at her.

Shortly after, the employee's son ran away from home.

Rather than being sympathetic to these events, the manager took disciplinary action against the employee for taking excessive time off work.

Over a 2.5 year period the manager verbally abused the employee and reduced her hours to less than the 40 guaranteed in her contract.

He gave her the worst loads to deliver and would abuse and humiliate her in front of staff on a regular basis.

The employee eventually resigned and the authority found that she was constructively dismissed.

She was found to have suffered psychological harm and was awarded six months lost income, another $16,000 for lost future earnings, and $25,000 for humiliation, loss of dignity and injury to feelings.

The other controversial Bill before Parliament is the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill.

This private members Bill would require the Employment Relations Act to be modified so that employees with an annual salary of more than $150,000 can contract out of the personal grievance provisions.

At present, any individual who suffers disadvantage in their employment or is wrongly dismissed can raise a personal grievance with their employer, provided they are not subject to a 90-day trial period.

Should the Act be amended, many employers who are able to would seek to include clauses in their employment agreements to negate the personal grievance provisions.

This idea has found favour in Australia, and in some states employers' representatives have been happy to reduce the impact of unfair dismissal claims, and unions have felt that the people who need the protection are the lower paid.

My view is that the law should apply the same to everyone and that employers should follow a fair process and have a proper reason for dismissal, whether the employee is on $40,000 or $200,000.

Although highly-paid employees are arguably able to take care of themselves and less likely to be taken advantage of, this concept is still an erosion of the 'one-law-for-all' principle and basic employment rights.

These two Bills deal with important issues that do affect the lives of many.

With the build-up to the election now increasing in momentum, it seems unlikely that these two pieces of legislation will be resolved before the election.

But regardless of when they are addressed, the impacts of these Bills could be substantial.