By Zeb Holmes and Ugur Nedim
From the first full pay period on or after 1 August 2018, these employees were given the opportunity to take up to 5 days of unpaid leave to deal with family violence, and any other relevant domestic incident.
“The circumstances faced by employees who experience family and domestic violence require a special response” the FWC stated. “[F]amily and domestic violence is a community issue and requires a community response.”
When can I access domestic violence leave?
The FWC updated all industry and occupation awards to include a new clause regarding family and domestic violence leave.
The law provides that if an employment contract or workplace policy provides less than the minimum award entitlement, the award will take precedence.
The new clause does not apply to employees who are:
- Covered by Enterprise awards,
- Covered by state reference public sector awards,
- Covered by enterprise and other registered agreements, or
- Not covered by an award or agreement.
However, the federal government has foreshadowed amendments to extend the entitlement under national employment standards.
Under the current rules, family and domestic violence is defined as, “violent, threatening or other abusive behaviour by an employee’s family member that seeks to coerce or control the employee or causes them harm or fear”.
Employees can take leave to deal with the impact of family and domestic violence, if it is impractical to do so outside their ordinary hours of work.
The FWC’s decision states that leave is available in a range of situations, including where it is necessary to:
- make arrangements for a victim’s safety or the safety of a family member (including relocation), or
- attend urgent court hearings or access police services.
The leave extends to all types of employees, including casual workers provided they are covered by a modern award.
Requirement of notice
An employee is deemed to have given sufficient notice to take leave if it is provided as soon as practicable – which may be before or after the leave has started – and advises the employer of the period or expected period of leave.
There is no requirement for notice to be provided by in writing.
Evidence of domestic violence
An employer may request evidence from an employee regarding the basis for taking leave.
The test for sufficiency of evidence is that it would satisfy a reasonable person that the leave is being taken for the proper purpose of the entitlement. This may include a document issued by a police service, a court or a family violence support service, or even a statutory declaration.
An employer has strict requirements when seeking evidence, and must treat all evidence confidentially.
Employers are required to implement policies to ensure that documents are not disclosed to other employees or third parties.
Accrual of domestic violence leave
Unlike personal/carer’s leave, domestic violence leave does not accrue progressively from year to year.
Rather, employees are entitled to 5 days of unpaid leave at the commencement of each 12-month period.
This means the entitlement refreshes every year.
The entitlement is not pro-rated, so full-time, part-time and casual employees will each be entitled to the full 5-day entitlement at the start of every year; so even an employee who has just started will be able to take the full 5 days.
Calls for paid leave
The ACTU has called on the government to go even further and provide 10 days of paid family and domestic violence leave under the National Employment Standards.
Federal Labor and the Greens have committed to this policy.
“Family and domestic violence costs our economy $12 billion per year,” stated ACTU National Campaign Coordinator Kara Keys. “To fund 10 days paid leave it would cost 5 cents per worker per day, and most importantly, it will help save lives.”
The ACTU says escaping an abusive relationship costs $18,000 and takes 141 hours, almost all during business hours. “Without paid leave, women can’t leave,” Ms Keys remarked.
However, employer groups say this would represent an unjustified burden on employers. They argue that requiring employers to pay the equivalent of 10 days – or even 5 days – for employees who have just commenced work would be oppressive, adding that employers should not have to bear the burden of the personal relationships of employees.
They say that if anything, perpetrators or even the government rather than struggling businesses should be required to pay for the impact of domestic violence.