Family Violence Leave
General / 20 November 2019
The Domestic Violence – Victim’s Protection Act 2018 (Act) came into force on 1 April 2019, directly impacting the Employment Relations Act 2000, the Holidays Act 2003 (HA) and the Human Rights Act 1993 (HRA). In summary, the Act prohibits discrimination on the grounds of being a person affected by family violence, creates an entitlement to up to 10 days’ paid leave and the ability to request a short-term variation to ordinary working arrangements.
The Family Violence Act 2018 (FVA) came into force on 1 July 2019, replacing the Domestic Violence Act 1995. The FVA broadened the definition of family violence as well as the individuals who may be affected by family violence.
Holidays Act 2003
Under Part 2, subpart 5 of the HA, employers must provide 10 days of paid leave a year to the victims of family violence. Victims of family violence are people against whom another person is or has inflicted family violence against or a person who is residing with a child that has been or is a victim of family violence (inflicted by another person). Such employees will also be able to request short term variations to their working arrangements, of no longer than two months.
Family violence is defined in the FVA as violence that is inflicted against a person by another person that is or has been in a family relationship with them. Violence means physical, sexual and/or psychological abuse and includes:
- a pattern of behaviour that is coercive or controlling and causes or may cause that person cumulative harm; and
- dowry-related violence which arises from concerns about gifts, goods, money, property or other benefits.
Abuse can be a single act or a number of acts forming a pattern of behaviour, and psychological abuse is defined in the FVA to include:
- threats of physical abuse, sexual abuse, financial or economic abuse and other forms of abuse;
- intimidation or harassment;
- damage to property;
- ill-treatment of animals whose welfare is likely to significantly affect a person’s wellbeing;
- hindering or removing access to aid, devices, medications or other supports that is likely to affect a person’s quality of life;
- causing or allowing a child to see or hear physical, sexual or psychological abuse of a person they have a family relationship with, or putting them at risk of seeing or hearing that abuse.
The HA includes continuous service requirements before the entitlement arises, in the same way as for sick and bereavement leave entitlements. Employees will have to advise employers of their intention to take this type of leave and they may be expected to provide proof that they are a person affected by family violence e.g. a Police report.
Employees will have grounds for a personal grievance or a claim under the HRA if they are treated adversely because they are person affected (or suspected or assumed to be affected) by family violence (including which occurred historically).
What does this mean for employers?
Employers will need to ensure decision makers are aware and educated in the changes, and will need to review various policies including leave policies. Consideration should be given to implementing a separate family violence policy which we recommend includes a requirement for proof of family violence. Payroll systems will also be another area which will need review to ensure that family violence leave is included and processes should be implemented to protect employees’ privacy.
The Human Rights Commission, in conjunction with a number of large employers, has developed a draft family violence policy for employers, available here www.businessworkingtoendfamilyviolence.co.nz. The website also offers additional educational resources to assist employers.
Given it is a legal requirement to ensure employees are aware of their minimum HA entitlements at the beginning of the employment relationship, individual employment agreements should be amended to refer to family violence leave. If you need help to update your agreement, or with drafting family violence policies please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.