Family Violence Leave in New Zealand
New Zealand law provides specific entitlements for employees affected by family violence, including paid leave and the right to request flexible working arrangements. These provisions aim to support employees to address the effects of family violence without jeopardising their employment. The primary legislation governing family violence leave is the Holidays Act 2003.
Definition of Family Violence
For the purposes of family violence leave, family violence is defined broadly. It includes physical, sexual, or psychological abuse by a person with whom the affected person has a family relationship. A family relationship is also broadly defined and includes a spouse or partner, a person they are living with or have lived with, a family member (related by blood, marriage, civil union, or adoption), or a person with whom they have a close personal relationship [Source: Holidays Act 2003, s 72A(1)].
Eligibility for Family Violence Leave
An employee becomes eligible for family violence leave after they have completed 6 months of continuous employment with the same employer [Source: Holidays Act 2003, s 72D(1)]. This entitlement arises irrespective of whether the family violence occurred during their employment or not.
Entitlement to Leave
Eligible employees are entitled to 10 days of paid family violence leave in each 12-month period [Source: Holidays Act 2003, s 72B(1)]. This leave is in addition to other forms of leave, such as annual leave, sick leave, and bereavement leave [Source: Holidays Act 2003, s 72B(3)]. The purpose of family violence leave is to enable an employee to deal with the effects of family violence [Source: Holidays Act 2003, s 72B(2)]. This may include, for example:
- Seeking a protection order.
- Attending court hearings.
- Moving house.
- Seeking medical help.
- Accessing counselling.
- Making arrangements for their children.
Unused family violence leave does not accumulate and cannot be carried over to the next 12-month period [Source: Holidays Act 2003, s 72E(1)]. Employees are not entitled to be paid for unused family violence leave upon termination of their employment [Source: Holidays Act 2003, s 72E(2)].
Payment for Family Violence Leave
When an employee takes family violence leave, they must be paid their relevant daily pay or average daily pay [Source: Holidays Act 2003, s 72F(1)].
- Relevant daily pay is the amount the employee would have received if they had worked on the day the leave was taken, including any regular allowances and payments. It excludes certain irregular or uncommon payments.
- Average daily pay is calculated by dividing the employee's gross earnings for the 52 weeks before the leave by the number of days they worked in that period. This is used if it is not possible or practicable to determine an employee's relevant daily pay, or if the employee's daily pay varies within the pay period when the leave is taken [Source: Holidays Act 2003, s 9].
Notification Requirements
An employee taking family violence leave is generally required to give their employer notice as early as possible. This notice should indicate the employee's intention to take leave, and if practicable, the number of days of leave they intend to take [Source: Holidays Act 2003, s 72G(1)]. If prior notice is not possible, the employee must give notice as soon as possible after taking the leave [Source: Holidays Act 2003, s 72G(2)].
Proof of Family Violence
An employer may ask an employee for proof that they have been affected by family violence. However, the employer must not ask for proof that would be unreasonable in the circumstances [Source: Holidays Act 2003, s 72H(1), s 72H(3)]. Acceptable forms of proof may include:
- A document issued by the Police, such as a safety order or a police incident report.
- A document issued by a court, such as a protection order.
- A statutory declaration from the employee.
- A letter from a family violence support service or a medical professional [Source: Holidays Act 2003, s 72H(2)].
Confidentiality
Employers have a legal obligation to keep any information about an employee's experience of family violence, or that an employee has sought or obtained family violence leave, confidential [Source: Holidays Act 2003, s 72I(1)]. This information can only be disclosed if:
- The employee consents to the disclosure.
- The disclosure is for a purpose related to family violence leave or flexible working arrangements for family violence.
- The disclosure is required by law.
- The disclosure is necessary to protect the life, health, or safety of any person [Source: Holidays Act 2003, s 72I(2)].
Protection Against Discrimination and Adverse Action
It is unlawful for an employer to take adverse action against an employee because they are or have been a person affected by family violence, or because they have sought to use, or have used, family violence leave or flexible working arrangements for family violence [Source: Holidays Act 2003, s 72K(1)]. Adverse action includes dismissing an employee, altering their position to their detriment, or treating them unfavourably in employment decisions [Source: Holidays Act 2003, s 72K(2)]. General discrimination on grounds such as sex or disability, which may be related to experiences of family violence, is also prohibited under the Human Rights Act 1993.
Short-Term Flexible Working Arrangements
An employee affected by family violence can request a short-term variation to their employment arrangements for up to 2 months to assist them in dealing with the effects of family violence [Source: Holidays Act 2003, s 72L(1)]. This might involve changes to their hours, days of work, or duties. The request must be in writing and include details of the variation sought, the period it would apply for, and how the variation would help the employee [Source: Holidays Act 2003, s 72L(2)].
Employers must respond to such requests in writing within 10 working days, stating whether the request is granted or refused, and providing reasons for any refusal. An employer can only refuse a request if they cannot reasonably accommodate it on the grounds specified in the Act [Source: Holidays Act 2003, s 72L(4), s 72M].
When to Seek Independent Legal Advice
Individuals seeking to understand their specific rights or obligations regarding family violence leave, or who believe their rights have been breached, should consult with an employment lawyer or contact official support services. Employers unsure of their obligations should seek expert advice. Guidance can also be obtained from Community Law Centres which provide free legal advice.