Contracting out can erode basic rights
This bill involves a significant shift as it brings an issue that is typically very private into the work sphere.
The domestic violence leave would be paid for by employers.
While the objective of reducing the impact of domestic violence is honourable, many employers will query whether the employer should have the responsibility for personal matters placed on them.
Several large employers such as ANZ, The Warehouse, and the University of Auckland already have domestic violence policies.
For small employers, a policy on domestic violence might be difficult to put in place.
One thing that may need to be addressed is that the bill does not appear to place a limit on how many times within a given period an employee could claim the 10 days’ domestic violence leave.
A 2011 case from the Employment Relations Authority gives an example of how domestic violence can impact on an individual’s employment.
An employee was offered employment at a trucking company by a manager who she met through her partner at the time. Six months in, the employee’s relationship with her partner ended following incidents of domestic violence against her.
From that point onwards her manager, who remained a friend of the ex-partner, began treating the employee badly. Shortly after, the employee’s son ran away from home. Rather than being sympathetic to these events, the manager took disciplinary action against the employee for taking excessive time off work.
Over a 2.5-year period the manager verbally abused the employee and reduced her hours to less than the 40 guaranteed in her contract. He gave her the worst loads to deliver and would abuse and humiliate her in front of staff on a regular basis.
The employee eventually resigned and the authority found that she was constructively dismissed. She was found to have suffered psychological harm and was awarded six months’ lost income, another $16,000 for lost future earnings, and $25,000 for humiliation, loss of dignity and injury to feelings.
The other controversial bill before Parliament is the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill.
This private member’s bill would require the Employment Relations Act to be modified so that employees with an annual salary of more than $150,000 can contract out of the personal grievance provisions.
At present, any individual who suffers disadvantage in their employment or is wrongly dismissed can raise a personal grievance with their employer, provided they are not subject to a 90-day trial period.
Should the act be amended, many employers would seek to include clauses in their employment agreements to negate the personal grievance provisions.
This idea has found favour in Australia. In some Australian states employers’ representatives have been happy to reduce the impact of claims, and unions have felt that those who need the protection are the lower paid.
My view is that the law should apply the same to everyone and that employers should follow a fair process and have a proper reason for dismissal, whether the employee is on $40,000 or $200,000.
Although highly paid employees are arguably less likely to be taken advantage of, this concept is still an erosion of the one-law-for-all principle and basic employment rights.
With the build-up to the election now increasing in momentum, it seems unlikely that these two pieces of legislation will be resolved before the election.
But regardless of when they are addressed, the impacts of these bills could be substantial.
For small employers, a policy on domestic violence might be difficult to put in place.
Peter Cullen is a partner at Cullen – the Employment Law Firm. peter@cullenlaw.co.nz.