The new Domestic Violence Protection Act 2018 came into force on 1 April 2019.
The Domestic Violence – Victims Protection Act 2018 (the Act) came into force on 1 April 2019 with a view to providing greater support and legal protection for victims of domestic violence. The Act recognises the harm experienced by those facing domestic violence and the support a workplace can provide to victims to stay in employment while they find ways to successfully rebuild their lives.
The Act provides;
- paid domestic violence leave
- short-term flexible working
- assurance that an employee will not be treated adversely at work if they are or might be experiencing domestic violence
- ability to access these conditions even if the domestic violence happened in the past
The definition of domestic violence comes from the Domestic Violence Act 1995 and means violence from one person against another person who is in a domestic relationship eg a partner or family member or is a close personal relationship.
A person affected by domestic violence means a person who is or has had domestic violence inflicted on them. This includes any domestic violence that is being or has been inflicted on a child who is living with them permanently or periodically. Violence includes physical, sexual or psychological abuse e.g. intimidation, harassment, financial abuse.
Under this Act a person who is thought or known to be experiencing domestic violence must not be treated adversely because of their circumstances. This includes but is not limited to processes and practices available to other employees such as, appointment, terms of employment, conditions of work, training opportunities and any discipline or conduct processes.
Flexible working short term
Employees who are affected by domestic violence can make or have someone make, on their behalf, a request for short term (2 months or shorter) variation to their working arrangements to assist them to deal with the effect(s) of domestic violence.
This variation might include one or more of the following: location, duties, hours/days of work, or any terms that may need to be varied to enable an employee to deal with the effects of domestic violence. This can be requested no matter how long ago the domestic violence occurred, even if it occurred before they became an employee at the school.
The employee must make the request in writing (template 1) and the employer must deal with the request, in writing (template 2), as soon as possible but no later than 10 working days after receiving it. The employer must provide information to the employee regarding appropriate specialist domestic violence support services before or at the time the employee is notified of the decision.
An employer may require proof that the employee is affected by domestic violence and can for example, be in an agreed form of a document from the Police, a health professional or a family violence support service. When requesting proof it is really important to be fair and equitable among all staff. If for example, you request proof from one employee but did not request it from another staff member under the same circumstances and there is no reason to believe the request is not genuine then it may not be a reasonable request under the circumstances.
The Act does not state what kind of proof the employer can accept. The employer needs to consider what is fair and reasonable and consider the circumstances the employee is facing in determining if proof is requested and in considering the acceptance of proof. We recommend contacting NZSTA in the first instance if there are any queries regarding requesting and accepting proof of domestic violence.
An employer may only refuse a request if proof of domestic violence has been requested (template 3) and not provided or, the request cannot be agreed to due to the needs of the school e.g. no reliever is available. Proof of domestic violence may be required by the employer by or on behalf of the employee within 10 days of the request only
- if the employer advises the employee as early as possible that it is required and;
- that they require this within 3 working days after they receive the request.
An employee can also make a request for a variation of their working arrangements under flexible working in the Employment Relations Act.
If an employee believes the employer has not followed the appropriate process in regards to notifying them about the decision on flexible working they should contact their union representative in the first instance if they belong to a union or a labour inspector here for advice or assistance.
For any support or advice regarding resolving disputes, employers should contact NZSTA.
Paid Domestic Violence Leave
Under this part of the Act an employee affected by domestic violence is entitled to 10 days leave to enable them to deal with the effects of domestic violence regardless of when it occurred. This means that an employee is entitled to domestic violence leave even if they were not an employee at the time and/or the violence occurred sometime in the past.
An employee is entitled to this leave after they have completed 6 months of current continuous employment or if over a period of 6 months the employee has worked for at least an average of 10 hours per week during that period and no less than 1 hour in every week or 40 hours in every month.
Leave must be provided to an employee who has completed 6 months continuous employment at the end of the first 6 months of employment. Domestic leave of 10 days is then available within each subsequent 12 months of continuous employment.
If an employee and employer mutually agree, domestic violence leave may be taken in advance which will then be deducted from the total entitlement.
An employee must notify their employer as early as possible before they are due to start work that they intend to take leave or if that is not practicable as soon as possible after that time.
Leave cannot be accrued, and any leave not taken in a 12 month period or at the conclusion of employment is not able to be paid out.
There are provisions requiring that employers allow employees who become entitled to domestic violence leave while talking annual holidays to be able to take domestic violence leave rather than annual leave. Due to the complexity of annual leave with the diversity of employee types (i.e. 52-week, 40-week, non-teaching staff, teaching staff) we recommend contacting NZSTA for advice specific to your situation.
Payment is at the employees’ normal rate of pay (including any allowances that apply) in the same pay period they took the leave. However, if an employee is required to provide proof of domestic violence and does not do so the employer is not required to make a payment under domestic leave until the request is complied with. An employer is not required to pay an employee if they are receiving weekly ACC payments.
An employer cannot require an employee to take domestic leave during the first week of ACC compensation or instead of weekly compensation for a work-related injury. However, they can by mutual agreement deduct from the domestic leave entitlement, 1 day for every 5 whole days if, there was already an agreement in place for paying the difference between the first week or weekly compensation and their ordinary weekly pay.
If you need advice and/or support around the Domestic Violence Protection Act 2018 please contact NZSTA for advice 0800 782 435.
- Template 1 - Employee request for flexible working short-term
- Template 2 - Decision to request for flexible working short-term for people affected by domestic violence under Part 6AB of the Domestic violence - Victims Protection Act 2018
- Template 3 - Request for proof of domestic violence
You will find further information regarding the new requirements in these documents: