Domestic Violence Victims Protection Bill

Transcription

1 Domestic Violence Victims Protection Bill Report of the Justice Committee May 2018 Contents Recommendation... 2 About the bill as introduced... 2 Lack of agreement on possible amendments... 2 New Zealand National Party view... 2 New Zealand Labour Party view... 4 Appendix A... 9 Appendix B Raymond Huo Chairperson

2 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL Domestic Violence Victims Protection Bill Recommendation The Justice Committee has examined the Domestic Violence Victims Protection Bill. We are unable to agree on whether this bill should proceed. We recommend that the House take note of this report. About the bill as introduced This bill is an omnibus Member s bill in the name of Jan Logie MP. As introduced, it seeks to amend the Domestic Violence Act 1995, the Employment Relations Act 2000, the Health and Safety at Work Act 2015, the Holidays Act 2003, and the Human Rights Act We considered Supplementary Order Paper No 310 (SOP) alongside the bill. The SOP, introduced by the member in charge of the bill, proposes amendments to the Domestic Violence Act, the Employment Relations Act, the Health and Safety at Work Act, and the Holidays Act. The purpose of the bill and SOP is to enhance the legal protection in the workplace for persons affected by domestic violence. It aims to support victims to stay in paid employment, which is a critical step to limiting the effects of domestic violence. Secure employment enables victims to maintain economic stability and helps them find a pathway out of violence to successfully rebuild their lives. For employers, the bill aims to reduce recruitment and training costs and maintain workplace productivity. Provisions in this bill would make it easier for victims of domestic violence to get assistance, access more flexible working arrangements, take paid leave, and be protected against adverse treatment in employment. Lack of agreement on possible amendments We have considered various possible amendments to the bill as introduced. However, we have been unable to agree on whether to recommend these amendments. Our views are set out below. New Zealand National Party view New Zealand National Party members of the committee do not support the proposed amendments made in the revision-tracked version of the bill. National members of the committee do not support the bill in its current form. We have seen many examples of employers recognising and providing appropriate support, flexibility in working arrangements and leave for employees affected by domestic violence. We have 2

3 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL seen no evidence that employers are taking an unreasonable approach to this important issue that justifies the complex new regulatory requirements proposed in this bill. It is important to recite the existing employer responsibilities and provisions as they relate to circumstances of domestic violence. Employers have a responsibility under the Health and Safety at Work Act 2015 to provide a safe workplace, and this includes protections while at work against the threats that may be posed to a victim of domestic violence. This could involve trespassing a threatening partner or blocking access via or telephone networks. An employer also already has responsibilities to reasonably consider requests for flexible working arrangements as provided for in Part 6AA of the Employment Relations Act. An employer must also under the provisions of the Holidays Act provide sick leave for an employee whose physical or mental health is affected by domestic violence subject to an employer s ability to seek a medical certificate. National members do not see a need for extending the existing provisions for flexible working arrangements. National members heard no evidence that the existing provisions cannot be accessed by those affected by domestic violence. The proposed changes would be challenging for the tens of thousands of small businesses to navigate. It is difficult to claim the bill guarantees any additional flexibility to those affected by domestic violence when it enables an employer wide discretion in declining a request. The new 10 days of annual domestic violence leave entitlements are significant. They are additional to the four of weeks annual leave, 11 days of public holiday leave, five days of sick leave, and three days of bereavement leave. This bill provides a very wide definition of circumstances in which an employer would have to provide domestic violence leave and also includes10 days leave for a support person. The original bill required that the employee provide a domestic violence document such as a complaint to the police or a statement from a domestic violence support organisation, similar to where an employer can require a doctor s certificate for sick leave. The Government s proposed amendments remove this requirement making the provision even more open ended. It will be difficult for an employer to ascertain the authenticity of any claim for additional domestic violence leave. This is particularly important given the wide definition of domestic violence including verbal abuse, monetary pressure and other aspects that are difficult to define. The provision for domestic violence leave is particularly open when the Government is also proposing amendments to put no limit on how long ago the domestic violence occurred. National members take the issue of domestic violence seriously as evidenced by its significant reforms and programme and prioritising of resources while in Government. We are not satisfied that the provisions will work and note that no other jurisdiction or country has added these proposals as compulsory requirements on employers. National members could support a more moderate bill such as one that extended the definition of existing leave entitlements to more explicitly include those affected by domestic violence. However, the greatest gains in business practice around issues of domestic violence for employees are through encouragement, education, and advocacy, rather than complex new legislation of this sort. 3

4 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL New Zealand Labour Party view The New Zealand Labour Party members of the committee support the following proposed amendments to the bill as introduced. Commencement As introduced, the bill would come into force on the day after it received Royal assent. Labour members recommend amending clause 2 to provide for a commencement date of 1 April This would allow time, for example, for employers and payroll providers to learn about, and implement, their new obligations under the Holidays Act. Part 1: Domestic Violence Act 1995 As explained below, Labour members recommend deleting Part 1 of the bill, which would amend the Domestic Violence Act. Clauses 4 and 5, as introduced, would insert definitions of domestic violence document and domestic violence victim into that Act. As introduced, the bill defines a victim of domestic violence as someone who has a domestic violence document. Defining a person affected by domestic violence by whether they have a suitable document could make support difficult to access. Many persons affected by domestic violence do not formally disclose the violence, and may choose not to seek support if they would be required to disclose it formally, or to their employer. Labour members also consider that provisions in legislation such as the Human Rights Act should be available regardless of a document. Clause 5 would insert a definition of victim of domestic violence into the object of the Domestic Violence Act. Labour members consider this likely to cause confusion as the definition is not used elsewhere in the Domestic Violence Act. Labour members also have concerns that the term would define supporters of people affected by domestic violence, such as a friend or family member, as a person affected by domestic violence for the purpose of accessing the bill s entitlements. Again, Labour members do not consider this appropriate. For these reasons, Labour members recommend deleting clauses 4 and 5, making Part 1 of the bill as introduced unnecessary. Labour members consider that continuing to refer to the person taking an entitlement as a victim would continue to stigmatise the employee while they are dealing with the effects of, and attempting to move past, the domestic violence. Labour members consider that inserting the alternative definition of person affected by domestic violence into the other Acts affected by this bill would better meet the policy intent. Person affected by domestic violence is defined as a person who is one or both of the following: A person against whom any other person is inflicting, or has inflicted, domestic violence. A person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, domestic violence. 4

5 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL List of acceptable documents As introduced, the SOP would amend clause 4 to include affidavits and statutory declarations as domestic violence documents. Labour members support the intent of this change as we consider these more accessible forms of proof. However, because Labour members propose above to delete clause 4, this SOP amendment is redundant. Labour members consider that listing a range of acceptable documents, whether for the purposes of a domestic violence document or proof required to access domestic violence leave or flexible work arrangements, would risk confusing employers who should be able to accept any proof that an employee is a person affected by domestic violence. Part 2: Employment Relations Act 2000 Flexible working arrangements Part 2 of the bill as introduced would amend the Employment Relations Act. Part 6AA of that Act gives employees a statutory right to request a variation in their working arrangements to get flexible working. Labour members recommend inserting clause 6A to clarify the relationship between existing Part 6AA and new Part 6AB. Labour members recommend inserting clause 6B to allow additional terms to be varied where a request under Part 6AA relates to a person affected by domestic violence who is seeking a longer-term variation. They could also have requests made on their behalf. Labour members believe this change to Part 6AA would deal adequately with long-term variations in working arrangements, but Labour members propose that short-term variations be dealt with under a new Part 6AB. As discussed below, Labour members recommend substantially amending clause 7 to insert a new Part 6AB into the Employment Relations Act. The proposed provisions would allow for requests for short-term flexible working arrangements for the purposes of dealing with the effects of being a person affected by domestic violence. New Part 6AB: short-term flexible working for people affected by domestic violence Labour members recommend amending clause 7 to provide a statutory right for an employee affected by domestic violence to make, or have made on their behalf, a request for a short-term variation of two months or less in their working arrangements. Under proposed new section 69ABB, the request could be made at any time, regardless of how long ago the domestic violence occurred, and regardless of whether it happened before each employment, or after these provisions came into force. This approach would ensure support was ongoing, and that employers would not be put in a position of determining whether domestic violence occurred at a particular time. Requests for short-term flexible working arrangements (as with all requests for flexible working arrangements under the Employment Relations Act) must be made in writing. A request would need to be dealt with by the employer no later than five working days after receiving it. If the request was not dealt with in five working days, the matter could be 5

6 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL referred to a labour inspector, or mediation, or an application could be made to the Employment Relations Authority. Labour members do not recommend that the proposed domestic violence working arrangements be available to a support person. Provisions would be available only to a person affected by domestic violence (which is a person against whom any other person inflicts, or has inflicted, domestic violence, or a person with whom a child suffering domestic violence resides). Provisions would be available to a person with whom a dependent, suffering domestic violence, resides. Duties of employer Labour members propose amending sections 69ABE to 69ABF which would set out the duties of an employer who receives a request from an employee who is a person affected by domestic violence for short-term flexible working arrangements. Employers would be required to notify in writing the outcome of the employee s request. This would need to be done as soon as possible, but no later than five working days after the request was made. The employer would also be obliged to provide the employee with information about appropriate specialist domestic violence support services. Employers could request proof that an employee is affected by domestic violence. This must be done as early as possible, and within three working days of the application, and the proof would need to be received no later than five working days after the request. If proof was not received in this time, an employer could refuse the request. Employers could refuse the request if it could not be reasonably accommodated. If the request is refused, the employer would need to explain the grounds for the refusal. Nonaccommodation grounds are specified in new section 69ABF(2). However, an employer must not refuse a request in the circumstances specified in new section 69ABF(3), which relates to the proposed variation being inconsistent with an applicable collective employment agreement. Resolving disputes New sections 69ABG to 69ABJ, proposed by Labour members, would insert new disputes resolution procedures. If an employer had not complied with their duties, for example, making an incorrect determination under section 69ABE, the employee could refer the matter to a labour inspector, or to mediation, or could make an application to the authority. Referrals or applications would need to be made within 12 months of the relevant date (the date of the refusal or the last day for decision) or (for an application after a reference) the date when the result of the reference first became known, or (if earlier) the date when that result should reasonably have become known, to the employee. A penalty could be applied only at the authority stage. Personal grievance about adverse treatment Labour members recommend inserting clause 7B to provide that a person could take a personal grievance against their employer if the person had been treated adversely because the employer considered that the person was or could be experiencing domestic violence. 6

7 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL Labour members also recommend inserting clause 8 to specify what actions by, or on behalf of, employers would constitute adverse treatment in employment of people affected by domestic violence. Labour members also discuss this issue later in relation to proposed amendments to the Human Rights Act Part 3: Health and Safety at Work Act 2015 Labour members recommend deleting Part 3 of the bill. Labour members consider that the general duties framework of the Health and Safety at Work Act already covers the work and safety effects of domestic violence. Inserting specific obligations could undermine how the Act is designed to work. Part 4: Holidays Act 2003 One policy intent of the bill is to provide access to paid leave for employees who are affected by domestic violence, for the purpose of assisting the employees to deal with the effects of that violence. Clause 14 would insert a new subpart into Part 2 of the Holidays Act to allow employees to take domestic violence leave. Labour members recommend amending these provisions to make them consistent with the bereavement and sick leave provisions in the Holidays Act. Aligning these types of leave would reduce potential confusion for employers and payroll providers who use the Act. Labour members do not consider it appropriate for a support person to be able to access domestic violence leave entitlements. Among other things, Labour members are concerned about the implications for small businesses if two employees, one suffering domestic violence and one in a supporting role, could take domestic violence leave at the same time. The proposed amendments would allow an employee to take domestic violence leave to deal with the effects of being a person affected by domestic violence regardless of how long ago the incident or incidents of domestic violence giving rise to the need for leave occurred. The entitlement would become available after six months of employment and is an entitlement of up to a total of 10 days in a 12-month period. Like bereavement leave and sick leave, domestic violence leave could be taken as the need arose and, by agreement between the employer and employee, taken in advance. The proposed amendments would allow employers to request proof of domestic violence. This is consistent with the sick leave provisions of the Holidays Act. The Act expects employers to show good faith towards their employees and accept a broad range of evidence, and does not provide a comprehensive list of evidence. As introduced, the bill would allow for 10 days of domestic violence leave, provided the correct evidence was supplied to the employer. It would not limit the number of times such leave could be requested. Labour members do not believe this accords with the policy intent, and recommend that up to 10 days domestic violence leave may be taken in a 12-month period (new section 72H). 7

8 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL Privacy of employees information The SOP proposes requiring employers to ensure that documents relating to employees requests and domestic violence are kept confidential. We do not support this proposed amendment as the Privacy Act 1993 already protects the personal details of employees. The committee received advice from the Office of the Privacy Commissioner which supports this recommendation. Part 5: Human Rights Act 1993 As introduced, clause 16 would make being a person affected by domestic violence a prohibited ground of discrimination in section 21 of the Act. Labour members do not consider this consistent with the Act s intent. Currently all grounds of discrimination are based on fixed characteristics or beliefs, rather than experiences. Instead, Labour members recommend inserting clause 17, which would insert new section 62A into the Act. This part of the Act focuses on other forms of harassment, such as sexual harassment (in existing section 62). New section 62A would provide that, if an employer treats a person adversely, in specified areas of employment, on the ground that the person is, or is suspected or assumed or believed to be, a person affected by domestic violence, then the employer would be in breach of Part 2 of the Human Rights Act. The person affected by domestic violence could complain to the Human Rights Commission and bring civil proceedings before the Human Rights Review Tribunal for remedies. Remedies include declarations of the breach, restraining orders, and damages. Labour members firmly believe that persons affected by domestic violence should not be disadvantaged when they disclose domestic violence. Also, employers should not avoid employing people they believe are likely to be persons affected by domestic violence. Proposed clause 17 is designed to protect persons affected by domestic violence from adverse treatment by an employer, whether in applying for work or in existing employment. However, these provisions would not extend to a support person. Again, Labour members note that it would not be necessary that the violence had been committed recently. It could have been committed before employment took place, and before the bill became law. 8

9 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL Appendix A Committee process The Domestic Violence Victims Protection Bill was referred to the Justice and Electoral Committee on 8 March The closing date for submissions was 19 May The bill was reinstated in the 52nd Parliament and referred to the Justice Committee on 8 November We received and considered 167 submissions from interested groups and individuals. We heard oral evidence from 35 submitters at hearings in Wellington. We received advice from the Ministry of Business, Innovation and Employment, the Ministry of Justice, and from an independent advisor, former Employment Court Judge Coral Shaw. We also received responses to information requests from the Accident Compensation Corporation and the Office of the Privacy Commissioner. Committee membership Raymond Huo (Chairperson) Hon Amy Adams (until 21 March 2018) Ginny Andersen Hon Maggie Barry (from 21 March 2018) Chris Bishop Andrew Falloon (until 21 March 2018) Matt King (until 21 March 2018) Hon Mark Mitchell (from 21 March 2018) Greg O Connor Priyanca Radhakrishnan Hon Dr Nick Smith (from 21 March 2018) Advice and evidence received The documents that we received as advice and evidence are available on the Parliament website, 9

10 DOMESTIC VIOLENCE VICTIMS PROTECTION BILL Appendix B Advice received from the Parliamentary Counsel Office The revision-tracked version of the bill, prepared by the Parliamentary Counsel Office, is attached. 10

11 PCO 17394/5.10 Drafted by Ross Carter IN CONFIDENCE Key: Domestic Violence Victims Protection Bill Member s Bill Proposed amendments for the consideration of the select committee this is inserted text this is deleted text Note: This version of the Bill shows amendments to the Bill that have been prepared by the PCO for the purposes of select committee consideration. This version does NOT have official status in terms of unamended text NOT show whether amendments might in due course be voted as majority or unanimous amendments NOT have the status of an as-reported back version of the Bill.

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13 Jan Logie Domestic Violence Victims Protection Bill Member s Bill Contents Page 1 Title 5 2 Commencement 5 Part 1 Domestic Violence Act Principal Act 5 4 Section 2 amended (Interpretation) 5 5 Section 5 amended (Object) 5 Part 2 Employment Relations Act Principal Act 6 Amendments to Part 6AA (flexible working) 6A Section 69AA amended (Object of this Part) 6 6B Section 69AAA amended (Interpretation) 6 New Part 6AB inserted 7 New Part 6AB inserted (Flexible working for victims of domestic violence) Part 6AB Flexible working for victims of domestic violence 69AB Object of this Part 7 69ABA Interpretation 8 69ABB Request 8 69ABC Employer s duties 9 69ABD Refusal 9 7 1

14 Domestic Violence Victims Protection Bill 7A 69ABE Disputes 10 69ABF Labour Inspectors 11 Part 6AB Flexible working short-term for people affected by domestic violence 69AB Object of this Part 11 69ABA Interpretation 11 Employee s statutory right to make request 69ABB When and why employee may make request 12 69ABC Requirements relating to request 13 Duties of employer 69ABE Employer must notify decision as soon as possible 13 69ABEAProof of domestic violence 14 69ABF Grounds for refusal of request by employer 14 Resolving disputes 69ABG Employee has choice of procedure at initial stage 15 69ABH Mediation after initial reference to Labour Inspector 15 69ABI Application to Authority after initial or later reference to 15 mediation 69ABJ Penalty 16 69ABK Limitation on challenging employer 16 Section 69J amended (Employment of employee who elects to 16 transfer to new employer treated as continuous) Amendments related to adverse treatment in employment of people affected by domestic violence 7B Section 103 amended (Personal grievance) 16 8 Section 105 amended (Prohibited grounds of discrimination for 17 purposes of section 104) 8 New section 108A inserted (Adverse treatment in employment of people affected by domestic violence) A Adverse treatment in employment of people affected by domestic violence 17 8A Section 111 amended (Definitions relating to personal grievances) 17 8B Section 123 amended (Remedies) 18 Consequential amendments related to new Part 6AB 8C Section 137 amended (Power of Authority to order compliance) 18 8D Section 161 amended (Jurisdiction) 18 8E Section 179B amended (Limitations on consideration by Employment Court of matters arising under Part 6AA) 18 2

15 Domestic Violence Victims Protection Bill Transitional, savings, and related provisions 8F Schedule 1AA amended 18 Part 3 Health and Safety at Work Act Principal Act Section 16 amended (Interpretation) Section 37 amended (Duty of PCBU who manages or controls 19 workplace) 12 Schedule 2 amended (Obligations of PCBU to health and safety representative) 19 Part 4 Holidays Act Principal Act 20 Consequential amendments 13A Section 3 amended (Purpose) 20 13B Section 4 amended (Overview) 20 13C Section 5 amended (Interpretation) 20 13D Section 9 amended (Meaning of relevant daily pay) 20 13E Section 9A amended (Average daily pay) 21 13F Section 12 amended (Determination of what would otherwise be 21 working day) 13G Section 14 amended (Meaning of gross earnings) 21 13H Section 16 amended (Entitlement to annual holidays) 21 13I New section 37A inserted (Employer must allow employee taking annual holidays to take domestic violence leave) 21 37A Employer must allow employee taking annual holidays to take domestic violence leave 21 13J Section 38 amended (Sickness, injury, or bereavement arising 22 before scheduled annual holidays) 13K Section 39 amended (Employer may allow employee to take 22 annual holidays if sick leave or bereavement leave exhausted) 13L Section 61A amended (Sickness, injury, or bereavement on public 22 holiday) 13M Section 71 amended (Payment for sick leave and bereavement leave) 22 New subpart 5 of Part 2 inserted 14 New Part 2, subpart 5 of Part 2 inserted (Domestic violence leave) 23 Subpart 5 Domestic violence leave 72A Purpose of this subpart 23 72B InterpretationMeaning of person affected by domestic 23 violence 3

16 Domestic Violence Victims Protection Bill 72C Request for and approval of domestic violence leave 23 Entitlement to domestic violence leave 72C Entitlement to domestic violence leave 24 72D When entitlement to domestic violence leave arises 24 72E Employee must notify employer of intention to take 25 domestic violence leave 72F Domestic violence leave need not be paid out 25 72G Proof of domestic violence 25 72H Duration of domestic violence leave 25 Payment for domestic violence leave 72I Payment for domestic violence leave 25 72J When payment for domestic violence leave must be made 26 Consequential amendments 14A Section 74 amended (Who can enforce Act) 26 14B Section 75 amended (Penalty for non-compliance) 26 14C Section 81 amended (Holiday and leave record) 26 14D Section 83 amended (Failure to keep or provide access to holiday and leave record) 26 Transitional, savings, and related provisions 14E Schedule 1AA amended 27 Part 5 Human Rights Act Principal Act Section 21 amended (Prohibited grounds of discrimination) 27 Consequential amendment 16 Section 21A amended (Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies) New section 62A inserted 17 New section 62A inserted (Adverse treatment in employment of people affected by domestic violence) 62A Adverse treatment in employment of people affected by domestic violence Transitional, savings, and related provisions 18 Schedule 1AA amended 28 Schedule Transitional, savings, and related provisions The Parliament of New Zealand enacts as follows: 4

17 Domestic Violence Victims Protection Bill Part 1 cl 5 1 Title This Act is the Domestic Violence Victims Protection Act Commencement This Act comes into force on the day after the date on which it receives the Royal assent1 April Principal Act Part 1 Domestic Violence Act 1995 This Part amends the Domestic Violence Act 1995 (the principal Act). 4 Section 2 amended (Interpretation) In section 2, insert in its appropriate alphabetical order: domestic violence document means (d) (e) (f) (g) (h) (i) a police report confirming attendance at an incident involving domestic violence; or a record of a police caution relating to domestic violence; or a record of criminal proceedings for an offence relating to domestic violence; or a record of a conviction for an offence relating to domestic violence; or a record of a court s finding of fact of domestic violence against a person by another person; or a court order relating to domestic violence; or a report from a medical practitioner stating that a person has injuries or a condition consistent with having suffered domestic violence; or a report from a domestic violence support organisation relating to a person who has suffered domestic violence; or any other document prescribed in regulations made under this Act 5 Section 5 amended (Object) In section 5, after subsection (2), insert: (2A) A victim of domestic violence, for the purposes of this Act, is a person who suffers domestic violence: for the purposes of other enactments, is a person who is able to produce a domestic violence document because (i) the person has suffered domestic violence; or 5

18 Part 2 cl 6 Domestic Violence Victims Protection Bill (ii) the person provides care or support to an individual in the person s immediate family or household who requires care or support because the individual suffers domestic violence in the individual s family. 6 Principal Act Part 2 Employment Relations Act 2000 This Part amends the Employment Relations Act 2000 (the principal Act). Amendments to Part 6AA (flexible working) 6A Section 69AA amended (Object of this Part) Replace section 69AA with: provide employees with a statutory right to make, or to have made on their behalf, a request for a variation of their working arrangements (other than a variation covered by Part 6AB (flexible working shortterm for people affected by domestic violence)); and 6B Section 69AAA amended (Interpretation) (1) In section 69AAA, insert in their appropriate alphabetical order: additional terms that need variation, in relation to an employee, means 1 or more of the following: (d) the location of the employee s workplace: the employee s duties at work: the extent of the contact details that the employee must provide to the employer: any other term of the employee s employment (i) (ii) that is not a term covered by paragraphs to of this definition or by paragraphs to of the definition in this section of working arrangements; and that, in the employee s view, needs variation to enable the employee to deal with the effects of being a person affected by domestic violence child has the meaning given to it in section 2 of the Domestic Violence Act 1995 domestic violence has the meaning given to it in section 3 of the Domestic Violence Act 1995 person affected by domestic violence means a person who is 1 or both of the following: 6

19 Domestic Violence Victims Protection Bill Part 2 cl 7 a person against whom any other person inflicts, or has inflicted, domestic violence: a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence (2) In section 69AAA, replace the definition of request with: request means a request made under this Part that is written; and requests an employer to vary an employee s terms and conditions of employment relating to the employee s working arrangements (other than by making a variation that the employee can request under Part 6AB (flexible working short-term for people affected by domestic violence)); and is made by the employee or on the employee s behalf (3) In section 69AAA, definition of working arrangements, after paragraph, insert: (d) if the employee is a person affected by domestic violence, additional terms that need variation. New Part 6AB inserted 7 New Part 6AB inserted (Flexible working for victims of domestic violence) After section 69AALPart 6AA, insert: Part 6AB Flexible working for victims of domestic violence 69AB Object of this Part The object of this Part is to (d) provide certain employees who are victims of domestic violence with a statutory right to request a variation of their working arrangements or to have a variation of their working arrangements requested on their behalf; and require an employer to deal with a request as soon as possible and no later than 3 months after receiving it; and provide that an employer may refuse a request only if it cannot be accommodated on certain grounds; and if an employer does not deal with a request in accordance with the process specified in this Part, provide for reference of the matter to a Labour Inspector, then to mediation, and then to the Authority. 7

20 Part 2 cl 7 Domestic Violence Victims Protection Bill 69ABA Interpretation In this Part, unless the context requires another meaning, domestic violence has the meaning given to it in section 2 of the Domestic Violence Act 1995 domestic violence document has the meaning given to it in section 2 of the Domestic Violence Act 1995 mediation means mediation provided under section 144 request means a request made under this Part that is written; and requests an employer to vary an employee s terms and conditions of employment relating to the employee s working arrangements; and is made by the employee or on the employee s behalf victim of domestic violence has the meaning given to it in section 5(2A) of the Domestic Violence Act 1995 working arrangements means 1 or more of the following terms of an employee s employment: (d) (e) (f) (g) 69ABB Request hours of work: days of work: place of work, whether his or her home, workplace, or some other place: location of workplace: duties at work: the extent of the contact details that the employee must provide to the employer: any other term that, in the employee s view, needs variation to enable him or her to deal with the effects of being a victim of domestic violence. (1) A request may be made in the following circumstances: the employee is a victim of domestic violence; and the employee has been employed by his or her employer for the 6 months immediately preceding the date on which the request is made; and (2) A request must if a previous request has been made, at least 12 months have passed since the date on which the previous request was made. be in writing; and state 8

21 Domestic Violence Victims Protection Bill Part 2 cl 7 (d) (e) (f) (g) (h) (i) (ii) the employee s name; and the date on which the request is made; and state that the request is made under this Part; and state (i) (ii) state (i) (ii) the variation of the working arrangements requested; and whether the variation is permanent or for a period of time; and the date on which it is proposed that the variation take effect; and if the variation is for a period of time, the date on which it is proposed that the variation end; and state how, in the employee s view, the variation will enable the employee to deal with the effects of being a victim of domestic violence; and state what changes, if any, in the employee s view, the employer may need to make to the employer s arrangements if the employee s request is approved; and have attached to it a copy of the employee s domestic violence document. 69ABC Employer s duties An employer must (d) deal with a request as soon as possible and not later than 3 months after receiving it; and refer the employee to appropriate domestic violence support services; and notify the employee whether the request has been approved or refused; and if the request is refused, (i) (ii) 69ABD Refusal notify the employee of the applicable ground in section 69ABD; and provide an explanation of the reasons why the ground applies. (1) An employer may refuse a request if the employer determines that the circumstances described in section 69ABB(1) do not exist. (2) An employer may refuse a request if the employer determines that the request cannot be accommodated because of 1 or more of the following: an inability to reorganise work among existing staff: an inability to recruit additional staff: 9

22 Part 2 cl 7 Domestic Violence Victims Protection Bill (d) (e) (f) (g) (h) the potential for a detrimental impact on quality: the potential for a detrimental impact on performance: the potential for a detrimental effect on ability to meet customer demand: insufficiency of work during the periods the employee proposes to work: planned structural changes: the burden of additional costs. (3) An employer must refuse a request if the request relates to (i) (ii) 69ABE Disputes an employee who is bound by a collective agreement; and working arrangements to which the collective agreement applies; and the employee s working arrangements, if the employer were to approve the request, would be inconsistent with the collective agreement. (1) This section applies if an employee believes that his or her employer has not complied with section 69ABC; or has made a wrong determination under section 69ABD(1). (2) The employee may refer the matter to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter. (3) If the employee is dissatisfied with the result of the reference to a Labour Inspector, the employee may refer the matter to mediation, at which the matter is treated as an employment relationship problem. (4) If the employee is dissatisfied with the result of the reference to mediation, the employee may apply to the Authority for a determination, but must make the application within 12 months after the date on which the employer notifies the employee of the employer s refusal, if the date is within 3 months after the employer received the request; or the date 3 months after the date on which the employer received the request, in any other case. (5) If the Authority determines that one of the grounds in subsection (1) applies to the employer, the employer must rectify the matter as soon as practicable. (6) An employee may challenge his or her employer s refusal of a request or failure to respond to a request only under this section. (7) An employer who does not comply with section 69ABC is liable to a penalty not exceeding $2,000, imposed by the Authority and payable to the employee concerned. 10

23 Domestic Violence Victims Protection Bill Part 2 cl 7 69ABF Labour Inspectors For the purposes of this Part, a Labour Inspector may provide employees and employers with the assistance he or she considers appropriate in the circumstances. Part 6AB Flexible working short-term for people affected by domestic violence 69AB Object of this Part The object of this Part is to (d) 69ABA Interpretation provide employees who are people affected by domestic violence with a statutory right to make, or to have made on their behalf, a request for a short-term (2-month or shorter) variation of their working arrangements (including any additional terms that need variation), for the purpose of assisting the employees to deal with the effects on the employees of being people affected by domestic violence; and require an employer to deal with a request as soon as possible but not later than 5 working days after receiving it; and provide that an employer may refuse a request only if proof of domestic violence is required and not produced, or the request cannot be accommodated reasonably on certain non-accommodation grounds; and if an employer does not deal with a request in accordance with this Part, provide for reference of the matter to a Labour Inspector, mediation, or the Authority. In this Part, unless the context otherwise requires, additional terms that need variation, in relation to an employee, means 1 or more of the following: (d) the location of the employee s workplace: the employee s duties at work: the extent of the contact details that the employee must provide to the employer: any other term of the employee s employment (i) (ii) that is not a term covered by paragraphs to of this definition or by paragraphs to of the definition in this section of working arrangements; and that, in the employee s view, needs variation to enable the employee to deal with the effects of being a person affected by domestic violence 11

24 Part 2 cl 7 Domestic Violence Victims Protection Bill child has the meaning given to it in section 2 of the Domestic Violence Act 1995 domestic violence has the meaning given to it in section 3 of the Domestic Violence Act 1995 mediation means mediation provided under section 144 non-compliance with section 69ABE includes, without limitation, making a wrong determination under 1 or both of section 69ABF(1) and person affected by domestic violence means a person who is 1 or both of the following: a person against whom any other person inflicts, or has inflicted, domestic violence: a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence request means a request made under this Part that is written; and requests an employer to vary an employee s terms and conditions of employment relating to the employee s working arrangements; and is made by the employee or on the employee s behalf working arrangements, in relation to an employee, means 1 or more of the following: (d) hours of work: days of work: place of work (for example, at home or at the employee s place of work): additional terms that need variation. Employee s statutory right to make request 69ABB When and why employee may make request (1) An employee who is a person affected by domestic violence may make a request at any time; and for the purpose of assisting the employee to deal with the effects on the employee of being a person affected by domestic violence. (2) Subsection (1) applies regardless of how long ago the domestic violence occurred, and even if the domestic violence occurred before the person became an employee. (3) A request made under this Part for a short-term (2-month or shorter) variation of the employee s working arrangements (as defined in section 69ABA) does 12

25 Domestic Violence Victims Protection Bill Part 2 cl 7 not prevent a request also being made under Part 6AA by or on behalf of the employee for a permanent, or fixed-period longer than 2 months, variation under that Part of the employee s working arrangements (as defined in section 69AAA). 69ABC Requirements relating to request A request must be in writing and (d) (e) state (i) (ii) (iii) the employee s name; and the date on which the request is made; and that the request is made under this Part; and specify the variation of the working arrangements requested and the period of time (which must be no longer than 2 months) for which the variation is requested; and specify the date on which the employee proposes that the variation take effect and the date on which it is proposed that the variation end; and specify how, in the employee s view, the variation will assist the employee to deal with the effects of being a person affected by domestic violence; and explain, in the employee s view, what changes, if any, the employer may need to make to the employer s arrangements if the employee s request is approved. Duties of employer 69ABE Employer must notify decision as soon as possible (1) An employer must deal with a request as soon as possible, but not later than 5 working days after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused. (2) In or before giving the notification under subsection (1), the employer must provide the employee with information about appropriate specialist domestic violence support services. (3) If the employer refuses an employee s request, the notification given under subsection (1) must state that the request is refused because of 1 or both grounds specified in section 69ABF(1) and ; and state the ground or grounds for refusal; and explain the reasons for that ground or those grounds. 13

26 Part 2 cl 7 Domestic Violence Victims Protection Bill 69ABEA Proof of domestic violence (1) An employer may require proof that an employee is a person affected by domestic violence to be produced (d) (e) to the employer; and by or on behalf of an employee; and for the purposes of a request made by or on behalf of the employee; and as soon as practicable after that proof is required by the employer under this section; and within 5 working days after the employer receives the request. (2) However, the employer may require proof of that kind only 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. Compare: 2003 No 129 s 68 69ABF Grounds for refusal of request by employer (1) An employer may refuse a request only if the employer determines 1 or both of the following: that proof required to be produced under section 69ABEA was not produced within 5 working days after the employer receives the request: that the request cannot be accommodated reasonably on 1 or more of the non-accommodation grounds specified in subsection (2). (2) The non-accommodation grounds are (d) (e) (f) (g) (h) inability to reorganise work among existing staff: inability to recruit additional staff: detrimental impact on quality: detrimental impact on performance: insufficiency of work during the periods the employee proposes to work: planned structural changes: burden of additional costs: detrimental effect on ability to meet customer demand. (3) An employer must not refuse a request just 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 14

27 Domestic Violence Victims Protection Bill Part 2 cl 7 the employee s working arrangements would be inconsistent with the collective agreement if the employer were to approve the request. Resolving disputes 69ABG Employee has choice of procedure at initial stage (1) This section applies if an employee believes that the employee s employer has not complied with section 69ABE. (2) The employee may do 1 of the following: refer the matter to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter; or refer the matter to mediation, at which the matter is treated as an employment relationship problem; or apply to the Authority for a determination as to whether the employer has complied with section 69ABE. (3) A reference or application under subsection (2),, or must be made within 12 months after the relevant date. (4) In subsection (3), relevant date means, if the employer notifies a refusal within 5 working days after receiving a request, the date on which the employer notifies the employee of the employer s refusal; or in any other case, the date that is 5 working days after the employer received the employee s request. 69ABH Mediation after initial reference to Labour Inspector (1) This section applies if the employee is dissatisfied with the result of the reference under section 69ABG(2) to a Labour Inspector. (2) The employee may refer the matter to mediation, at which the matter is treated as an employment relationship problem. (3) A reference under subsection (2) must be made within 12 months after the earlier of the date when the result of the reference first became known to the employee; or the date when the result of the reference should reasonably have become known to the employee. 69ABI Application to Authority after initial or later reference to mediation (1) This section applies if the employee is dissatisfied with the result of the reference under section ABG(2) or ABH(2) to mediation. 15

28 Part 2 cl 7A Domestic Violence Victims Protection Bill (2) The employee may apply to the Authority for a determination as to whether the employer has complied with section 69ABE. (3) An application under subsection (2) must be made within 12 months after the earlier of 69ABJ Penalty the date when the result of the reference first became known to the employee; or the date when the result of the reference should reasonably have become known to the employee. (1) An employer who does not comply with section 69ABE is liable to a penalty under this Act imposed by the Authority. (2) The penalty is payable to the employee concerned. (3) For the purposes of the 12-month time limit in section 135(5), the date on which the cause of action for the recovery of the penalty first became known to the employee, or should reasonably have become known to the employee, must be taken to be a date after, as the case requires, the relevant date under section 69ABG(3); or the applicable date under section 69ABI(3) or. 69ABK Limitation on challenging employer An employee may challenge his or her employer s refusal of a request, or failure to respond to a request, only if the employee believes his or her employer has not complied with section 69ABE; and to the extent provided by sections 69ABG to 69ABJ. 7A Section 69J amended (Employment of employee who elects to transfer to new employer treated as continuous) In section 69J(2)(i), replace and bereavement leave with bereavement leave, and domestic violence leave. Amendments related to adverse treatment in employment of people affected by domestic violence 7B Section 103 amended (Personal grievance) After section 103(1)(d), insert: (da) that the employee has been treated adversely in the employee s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by domestic violence; or 16