Family Violence Provisions

Victims of family violence have the right to make a request to their employer for flexible working arrangements (under the Employment Relations Act); and the right to up to 10 days family violence leave per year, paid by the employer (under the Holidays Act).

Affected Person
 

In this context, a person affected by family violence means a person who is one or both of the following:

  • A person against whom any other person is inflicting, or has inflicted, family violence,
  • A person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, family violence.


Flexible Working
 

An employee affected by family violence may make a request at any time for the purpose of assisting them to deal with the effects of family violence.  This applies regardless of how long ago the family violence occurred, and even if the family violence occurred before the person became an employee.

  • Requests may be made for flexible working arrangements, for up to 2 months.
  • Agreement must not unreasonably be withheld.
  • The request must be in writing and set out a number of details, including how the variation will assist the employee.

Employers must respond to all requests within 10 working days of the request.


Proof of Family Violence

Employers may require proof of family violence on the basis that it is made to them,

  • By or on behalf of the employee; and
  • As soon as practicable after proof is required by the employer, and
  • Within 10 working days of the employer receiving the request.

 Proof can only be required if –

  • The employer informs the employee as early as possible that the proof is required; and
  • The employer requires the proof within 3 working days after the employer receives the request.


Limited grounds to refuse request

An employer may refuse a request for flexible work arrangements only if they determine one or both of the following:

  • That the proof required to be produced was not produced within 10 working days after the employer receives the request;
  • That the request cannot be accommodated reasonably on one or more of the following grounds (non-accommodation grounds):

              - Inability to reorganise work among existing staff.

              - Inability to recruit additional staff.

              - A detrimental impact on quality.

              - A detrimental impact on performance to the organisation.

              - Insufficiency of work during the periods the employee proposes to work.

              - Planned structural changes.

              - Financial burden.

              - A detriment to meet customer demands.

An employer cannot refuse a request simply because:

  • The request is from an employee who is bound by a collective agreement; and

  • The request relates to working arrangements to which the collective agreement applies; and

  • The employee’s working arrangements will become inconsistent with the collective agreement if the employer approves the request.


Family Violence Leave
 
  • Employees are entitled to up to 10 days’ family violence leave per year.
  • The threshold for this leave is similar to that for sick leave – i.e. after 6 months continuous service, or where the employee has worked at least 10 hours per week in a 6 months’ period, and no less than 1 hour per week, or 40 hours per month in that 6 months period.
  • Employees must advise employers of their intention to take family violence leave as early as possible, prior to taking the leave.  Where this is not practicable, as early as possible after they have taken the leave.
  • Employers may require proof that family violence has occurred.  

The Holidays Act has also been amended to allow an employee on annual holidays to take family violence leave instead.

Family Violence Leave need not be paid out

An employee is not entitled to be paid for any family violence leave that has not been taken before the date on which the employee’s employment ends.

Payment for Family Violence Leave

When an employee takes family violence leave they should be paid the equivalent to their relevant daily pay or average daily pay per each day of leave taken.  However, if the employee is receiving payments under the Accident Compensation Act 2001 (or its former Act), than the employer is not required to make payments for leave taken.

If an employer pays the difference between the employee’s first week compensation or weekly compensation and ordinary weekly pay (“tops up”), the employer may agree with the employee to deduct from the employee’s family violence leave entitlement 1 day for every 5 whole days that the employer tops up the payment.