By Vaughan Granier

On 01 April 2019 a new form of paid leave will become available to employees, through an amendment (the addition of part 6AB) to the Employment Relations Act 2000. The new type of leave is known as “Domestic Violence Leave” and is available to employees who are victims of domestic violence. New Zealand has one of the world’s highest rates of domestic violence and this leave is intended to provide a measure of workplace protection for people who’re unable to work owing to their difficult personal circumstances. This includes employees who live with a child who is a victim of domestic violence.

The amendment has three main thrusts and mechanisms:

First is the entitlement to 10 days paid leave (Subpart 5). This leave is available as needed, after the employee has been employed for 6 months continuously, and can be taken multiple times and in any amount required, until the 10-day maximum per year is reached. In appropriate circumstances, an employee can request leave in advance. (Basically it’s similar to sick leave in how it’s handled, except that it can’t be accrued year on year.)

Second is the entitlement of a domestic violence victim to request in writing (or someone can request on their behalf) a short-term flexible working arrangement (Part 6AB). These short-term changes should be for a period of less than 2 months, and can include changes to their hours of work, location of work and to the duties they perform. There’s no requirement that the domestic violence must be currently occurring, so a request could be in relation to a situation “regardless of how long ago”.

This request should specify:

  • The employee’s name
  • The date of the request
  • the requested variation to work arrangements
  • start and end dates of the variation
  • how the variation will support the employee
  • What changes the employer should make if they approve the request

Third is a protection against discrimination (section 108A) extended to any employee who suffers domestic violence and makes use of these provisions.

As an employer, you need to be equipped to handle these requests in a confidential, respectful and compassionate manner, as this form of leave is both deeply personal and private to the employee, and highly sensitive in nature. Employees who feel discriminated against, or feel that any request has been unreasonably refused, can raise a dispute. They can do this within 6 months of the unreasonable action of their employer.

Guidelines for handling requests for domestic violence leave & flexible working arrangements

Remember to update your payroll systems to reflect the new paid leave type. We recommend you add the full 10-day entitlement from 01 April for employees who have more than 6 months service. For employees with less than 6 months service, you should wait until they’ve completed 6 months before adding the leave entitlement.

There’s no reason to consider this entitlement to be for a calendar year as opposed to a tax year.

Payment for these days is calculated as per the Holidays Act.

It’s reasonable, where appropriate, to request proof of the need for domestic violence leave.

It’s reasonable to request proof of the need for the flexible working arrangements, but you must do so promptly and must make clear that you expect it to be provided within 3 days. If you don’t do this, you can’t use lack of proof as a reasonable ground to refuse the request.

A request for domestic violence leave can only be refused if:

  • Work cannot be reorganised
  • Replacement labour cannot be sourced
  • Quality or performance may be affected
  • Proposed arrangements are unviable from a business standpoint, or incur a burden of additional costs
  • It interferes with proposed structural changes, or
  • It has a detrimental effect on meeting customer demands

Any request like this must be handled urgently, confidentially and responded to in writing as soon as possible (within a maximum of 10 working days).

Disputes

If an employee disputes your decision as an employer, they have three options from the outset of the matter, and can choose which suits them:

  • Refer it to a Labour Inspector (and then to mediation if not satisfied)
  • Refer it to mediation as an employment relationship problem
  • Apply to the ERA for a determination.

If the complaint is upheld, the ERA can impose a financial penalty on you, as the employer, which you would have to pay to the employee concerned.

Vaughan Granier is National Workplace Relations Manager for HR Assured NZ.