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DOMESTIC VIOLENCE ACT IMPLICATIONS
THE GOVERNMENT RECENTLY PASSED NEW LEGISLATION CREATING SPECIAL LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE. BCA LEGAL ADVISOR NINA JIRKOWSKY EXPLAINS THE MAIN ASPECTS OF THE ACT.
Domestic violence has a damaging impact on victims’ lives. In recognition of this, the Government recently passed the Domestic Violence – Victims’ Protection Act 2018 ( e Act). e Act intends to enhance legal protections for victims, encourage workplaces to support victims to stay in employment, nd a pathway out of vio- lence and successfully rebuild their lives.
is Act also amends the Employment Relations Act 2000, the Holidays Act 2003, and the Human Rights Act 1993. e main changes introduced are:
DOMESTIC VIOLENCE LEAVE
is is a new category of leave under the Holidays Act 2003 and is distinct from annual, sick and bereavement leave entitlements. An employee who is “a ected by domestic violence” may take up to 10 days paid domestic violence leave per year. A person is considered to be a ected by domestic violence if:
FLEXIBLE WORKING ARRANGEMENTS
e new Act amends the Employment Relations Act 2000 by allow- ing an employee a ected by domestic violence to seek exible working arrangements for a period of no more than 2 months. is is in addition to the right to take domestic violence leave.
A request for exible working arrangements must be:
■ made in writing
■ include the date on which the employee proposes the varia-
tion will take e ect
■ include the date on which it will end
■ state how in the employee’s view the variation will help the
employee deal with the e ects of the domestic violence expe-
rienced; and
■ include an explanation as to what changes the employer may
need to make if the request is approved.
e employer must deal with these requests as soon as possible,
and no later than 10 working days a er receiving the request.
An employee will be able to claim a personal grievance against the employer if the employee has been treated adversely on the
grounds that they are a person a ected by domestic violence.
RIGHTS OF THE EMPLOYER – FLEXIBLE WORKING ARRANGEMENTS
As with the domestic violence leave, an employer may require proof that domestic violence has occurred. If the employee fails to pro- vide proof, the employer may refuse the request of exible working arrangements. e employer may also refuse if the request cannot be reasonably accommodated because of:
■ an inability to reorganize work among existing sta ■ an inability to recruit additional sta
■ detrimental impact on quality
■ detrimental impact on performance
■ insu ciency of work during the periods the employee pro- poses to work
■ planned structural changes
■ burden of additional costs
■ detrimental e ect on the employer’s ability to meet customer
demand.
EMPLOYEE MAY CLAIM UNDER HUMAN RIGHTS ACT 1993
e new Act also amends the Human Rights Act 1993 by enabling an employee to make a claim that they are treated adversely in their employment on the grounds that they are, or are suspected, assumed or believed to be, a person a ected by domestic violence.
WHAT NOW?
e Act comes into force on 1 April 2019. Domestic violence leave and applications for exible working arrangements could have signi cant implications for employers. It is important employ- ers have well-dra ed policies in place to protect both themselves and employees. ese policies should acknowledge the employer’s obligations, steps for both employers and employees to follow, and ensure any employees a ected by domestic violence have their requests considered appropriately and responsibly.
■ ■
they are a person against whom any other person in icts, or has in icted, domestic violence; and/or
a person with whom there ordinarily or periodically resides a child against whom any other person in icts, or has in icted, domestic violence.
‘Domestic violence’ itself is de ned as including physical, sexual or psychological abuse by a person with whom the victim is in a domestic relationship with.
e employee must have completed 6 months continuous employment to be entitled to the leave, but there is no time limit on when an a ected employee can subsequently request domestic violence leave. Employees are also eligible to take the leave if the domestic violence occurred before the employee started work at that place of employment.
If an employer fails to comply with this new category of leave, they will be liable for a penalty not exceeding $10,000 (if the employer is an individual) or a penalty not exceeding $20,000 (if the employer is a company).
RIGHTS OF THE EMPLOYER – DOMESTIC VIOLENCE LEAVE
An employer may require proof an employee is a person a ected by domestic violence. To do this, the employer must make the request for proof as soon as possible, and no later than three working days a er the domestic violence leave request is received.
If no reasonable proof is provided, the employer does not have to pay for the domestic violence leave. However, the entitlement to take the leave unpaid remains.
16 CIRCULAR SEPTEMBER 2018
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