Domestic Violence Law comes into effect

18 April 2019

On Monday 1 April 2019, the Domestic Violence - Victim Protection Act 2018 came into effect. The Act provides legal protections in the workplace for people affected by domestic violence.

The Act establishes three key entitlements for employees affected by domestic violence: paid domestic violence leave, short-term flexible working and prohibiting adverse treatment on the basis of suspected domestic abuse.

New Zealand is only the second country in the world to legislate mandatory paid domestic violence leave, although in recent years several major companies in New Zealand have implemented policies to address and accommodate the effects of domestic violence.

Coverage of the Act

Domestic violence is defined by the Act as violence by a person against another person whom they are in a domestic relationship with, such as a spouse, family member, member of the household or other close personal relationship.

Violence in this context is broad and includes psychological abuse such as intimidation, damage to property, threats of violence or subjecting a child to witnessing domestic violence.

A person is affected by domestic violence where they have had domestic violence inflicted against them or where a child the person lives with experiences domestic violence.

Domestic violence leave

The most significant change by the Act is the right to up to 10 days' domestic violence leave each year. This leave is paid time off to assist the individual to deal with the effects of domestic violence, for instance to move to a new house, get support or go to court.

This entitlement applies to all employees who have worked for their employer for six months continuously. The 10 day entitlement can be taken in increments and does not carry over into the next year.

When an employee wishes to take domestic violence leave, they must tell their employer as soon as possible. The employer is permitted to ask for proof that the employee is affected by domestic violence.

The Act does not state what constitutes 'proof of domestic violence'. It is likely that this may be a letter from a support person or organisation, such as Refuges, a medical certificate, a report from school, court documents or police documents. As with any interaction between an employer and an employee, the duty of good faith applies and both parties must be active and communicative.

Short-term flexible working

The Act also provides employees with a right to request short-term flexible working arrangements for up to two months to assist the employee in dealing with the effects of domestic violence.

When an employee makes such a request, the employer is obligated to respond within 10 working days. An employer can only refuse a request if they asked for proof of domestic violence and they have not received it, or a 'non-accommodation' ground applies such as an inability to reorganise the work among other workers or an insufficient amount of work for the employee to work in the arrangement requested.

It is important to remember that this right is in addition to the general right to request flexible working arrangements for any reason.

No adverse treatment

The Act empowers individuals to utilise their entitlements by making it unlawful for a person to treat another person adversely on the ground that the person is suspected, assumed or believed to be affected by domestic violence. This applies when a person is employed and where a person makes an application for employment.

This provision prevents employers from not employing or dismissing an employee on the basis that they are likely to utilise the entitlements provided under the Act.

Other upcoming changes

The domestic violence-related amendments are not the only recent employment law changes to bear in mind.

Notably, 1 April 2019 also marked an increase in the minimum wage from $16.50 to $17.70.

In addition, several changes in the Employment Relations Amendment Act 2019 come into force on 6 May 2019. This includes mandatory rest and meal breaks including the default times these are to be taken if the employer and employee have not agreed on such times.

In addition, from this date employers with 20 or more employees can no longer use a 90-day trial for new employees. This means all dismissals by such employers, no matter how early into the employment relationship, will be subject to the ability of the employee to raise a personal grievance for unjustified dismissal.

Finally, several changes in respect of unions and collective bargaining will come into force. This includes reasonable paid time off for union delegates, and union representatives no longer requiring an employer's consent to enter the workplace, provided there is a collective agreement in force or being bargained for.

2019 is a year of change for employment law, and employers and employees should be conscious of their changing obligations and rights.