It may have escaped many employers’ notice that from 1 April 2019 they will need to provide an extra 10 days leave per annum to every employee after 6 months employment. The leave can be taken by any employee who is “affected” by domestic violence, which means that the employee in question doesn’t need to be a victim of domestic violence, they just need to be “affected” by it. According to this definition if my friend has been a victim of domestic violence and I go and look after my friend then I can phone work and get a paid day off on domestic violence leave.
The definition also allows for an employee to be affected by domestic violence that occurred prior to the employee commencing with the current employer. So there is the very real potential for people to take paid domestic violence leave for an act of domestic violence that happened at any time in the employee’s lifetime.
The specific wording that will come in to affect next year is so permissive in the way it’s written, that almost any situation when the employee claims they are affected by domestic violence they will be able to claim their 10 days paid leave without needing to provide proof. Unlike with sick leave, there is no legislated ability for the employer to request a medical certificate or any other evidence to back up taking 3 or more days leave at a time. This permissive wording will allow employees to take up to 10 days paid domestic violence leave every year without any requirements, except contacting their employer to advise them they are not coming into work.
As this leave is an addition to the Holidays Act 1983, all of the requirements of the Holidays Act must be adhered to for this new leave. This means the employer must record the allocation of the 10 days leave in their payroll as well as when leave is taken. It also means that domestic violence leave will become part of the minimum employment standards which Labour Inspectors can enforce. It is worth remembering that a serious breach of any minimum employment standard can result in a fine of up to $100,000 for employers – for each breach. Persistent breaches can result in the employer being banned from employing employees for up to 10 years (there was a case this year where a Christchurch employer was banned from employing staff for 3 years). So it’s important for employers to understand there are some serious teeth in the legislation for non-compliance with the minimum employment standards.
Unfortunately for employers, the legislative changes for domestic violence leave did not end with the leave. The Government also passed changes to the Employment Relations Act allowing for employees who are affected by domestic violence to seek a variation in their employment agreement for up to 2 months. This could be a change in the employee’s hours of work, days of work, or location of work. The employer must respond in 10 days to any request, but the hook in the legislation is that employer only has 3 days following the request to ask the employee for proof of being affected by domestic violence and why they need the variation. So employers will need to ensure they have a process and documentation at the ready to request proof of being affected by domestic violence. There are 8 specified grounds listed in the legislation, which an employer can use to decline a request, but the employer needs to show that at least 2 of the 8 grounds are at play before being able to decline the variation.
While many employees will not abuse the permissive wording for this leave and take it all every year, we must acknowledge that there is a portion of employees who will. This is very similar to sick leave – not everyone who takes a day’s sick leave is actually sick. The wording makes it very difficult for employers to take any type of disciplinary action against suspected abuse of this leave. It will be very interesting to see how the Employment Court and Authority deal with cases involving the new legislation, however I suspect the leave will end up having similar “rules” as sick leave entitlements.
I also find that it’s pretty stunning that this domestic violence leave legislation – which by any standard has the ability to heavily impact an employer’s costs – has slipped through without much discussion amongst employers.
If you or your business have any questions or would like to discuss how you might deal with these changes, please email Kate@mesolutions.nz or call Kate on 021 517000.