The Domestic Violence – Victims Protection Bill – what's the fuss?

The Domestic Violence - Victims Protection Act 2018 comes into force on 1 April 2019.  It provides a package of workplace reforms to enhance legal protections for victims of family violence. In Australia, 1.6 million workers are already covered by similar provisions. The most contentious is a right under the Holidays Act 2003 to request up to 10 days domestic violence leave a year, in addition to statutory sick leave entitlements. 

The workplace reforms will:

  1. confer on qualifying domestic violence victims an absolute right under the Holidays Act 2003 to up to 10 days a year domestic violence leave after 6 months qualifying employment. If this leave is requested, the employer must grant it. This is in addition to statutory sick leave entitlements. The leave will be paid in the same way as statutory sick leave entitlements. It will be in addition to statutory sick leave entitlements or contractual sick leave entitlements if higher.
  2. confer on victims a statutory right under the Employment Relations Act 2000 to request flexible working to vary their working arrangements, either permanently or for a period of time.
  3. add a new limb to discrimination personal grievances and prohibited grounds under the Human Rights Act 1993
  4. add a second limb to the definition of a workplace hazard to include a situation in which a person’s behaviour stems from being a victim of domestic violence or from being the person who inflicted the violence.
  5. impose an obligation on employers to have a workplace policy on dealing with situations where a person’s behaviour in the workplace stems from being a victim of domestic violence or because the person is a perpetrator of it, and the behaviour is an actual or potential source of harm to a person within a workplace or outside a workplace.
  6. Health and safety representatives must have training in supporting victims of domestic violence.  

There are no exemptions for small employers, namely those with 19 employees or less.

Will these measures have a significant impact for employers and employees?

Privacy

Employers and others will acquire personal information about the domestic circumstances and health of victims. Under the Privacy Act 1993 the persons holding the information must not disclose it except tightly controlled instances.

Extra paid leave

The greatest impact is likely to be the right to up to 10 days paid domestic violence leave a year. The paid leave could take the form of paid short intermittent absences or longer periods of up to the full 10 days.  The leave appears to be on top of ACC paid leave, which some victims would also be entitled to, as well as their paid sick leave entitlements. It puts some of the cost of compensating victims for loss of earnings on employers, away from the taxpayer. The leave is not confined to recovery from injury. It can also be used for counselling, moving house, settling children into a new school, dealing with the Family Court, or safety planning. This may be challenging for other employees, who are not victims of domestic violence, who face similar challenges in relation to some of these matters.

Changing hours of work

The right for anyone to request flexible working arrangements under Part 6AA Employment Relations Act 2000 has been law since 2008. Empirical evidence suggests the uptake on this right is relatively low, with most employers faced with requests of this type taking a pragmatic approach. It is hard to see how this new right is going to change this.

Discrimination

The provisions are implicitly gender-biased because in most of the serious cases, it is women who are the victims. The reforms add another layer of protection for people from being subjected to disadvantage in opportunities for jobs and promotions and being ostracized by colleagues and/or their jobs being at risk because they are a victim of domestic violence. Discrimination cases are now the subject of forum shopping and there has been an increase in discrimination cases being taken in the Human Rights Tribunal where in some cases, substantial five figure awards have been made.   

Health and Safety

The Bill adds another layer of compliance on enterprises. Employers will now be required to demonstrate they have identified domestic violence as a workplace hazard and have systems in place to create a workplace environment to mitigate its impacts both inside the workplace and in its vicinity. Health and Safety representatives will now need to be trained to recognise family violence as a workplace hazard.

The extra paid leave entitlement and added protection from discrimination adds a layer of protection for victims but complication for employers in managing intermittent and/or long term incapacity absences and new health and safety compliance requirements.


For further information please contact

SJD

S-J Davies

Email: sj.davies@harkness.co.nz

Direct Dial: +64 7 834 6682

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