In the employment law space, there have been growing calls for all Australian employees to have a minimum entitlement to take either paid or unpaid domestic violence leave.
In September 2017, 10 days' paid domestic violence leave was introduced for public sector employees by a Western Australian Premier's Circular.1 This entitlement did not extend to Western Australian employees outside the public sector (e.g. those employees working for sole traders or partnerships).
The debate was reinvigorated in March 2018, when, as part of the four-yearly review of modern awards, the Fair Work Commission introduced 5 days' unpaid domestic violence leave for all award-covered employees.
In the wake of this decision, the Federal Government passed legislation to extend the same 5 days' unpaid domestic violence leave to all federal system employees.
DOMESTIC AND FAMILY VIOLENCE LEAVE IN WESTERN AUSTRALIA
On 12 December 2018, the Fair Work Act 2009 (Cth) was amended to provide full-time, part-time and casual employees with an entitlement to 5 days unpaid family and domestic violence leave in a 12 month period.
Since July 2018, all award-covered employees have been able to access family and domestic violence leave. These legislative amendments have expanded the number of employees who are able to access domestic violence leave.
HOW IS DOMESTIC AND FAMILY VIOLENCE LEAVE ACCRUED?
Under the FW Act, this unpaid leave does not need to be accrued over the year, but will be available in full at the start of each 12 month period of employment. It will not roll-over from year to year.
An employee can take this type of leave when the employee:
- is experiencing family or domestic violence,
- needs to do something to deal with the impact of family or domestic violence; and
- it is impractical to do outside the employee's ordinary hours of work (such as relocation, urgent court hearings or accessing police services)
OBLIGATIONS FOR EMPLOYERS UNDER THE NEW LAWS
An employer has an obligation to ensure that information given by the employee taking domestic or family violence leave is treated confidentially. However, an employer is not prevented from disclosing such information when required by Australian law or where it is necessary to protect the life, health or safety of the employee or another person.
TIPS FOR EMPLOYERS
- Familiarise yourself and your managerial staff with this leave entitlement for employees covered by the FW Act and any relevant modern award;
- Communicate this leave entitlement to new and existing team members in a sensitive manner; and
- Update any relevant workplace policies and procedures to reflect these changes. (Learn more about our affordable workplace policies packages here)
- If you have an employee experiencing domestic violence, speak to a specialist Employment lawyer in advance so that you're able to provide the best, and legally compliant support, in an emergency.
THE REALITIES OF DOMESTIC VIOLENCE
On average, one woman is killed each week, and one man is killed each month, by a current or former partner.2 The Australian Institute of Health and Welfare has reported that as at February 2018, Australian police had already dealt with 440 domestic violence matters in 2018.3
Domestic and family violence has far-reaching effects on the health and financial security of an individual. Attempting to locate new, suitable accommodation at short notice, seeking medical and/or legal assistance and attending court proceedings are part of a time-consuming and emotionally-draining process. The difficulty for employees is that this process predominately occurs during business hours. Even if an employee does attend for work, research has shown that domestic violence reduces an employee's ability to perform tasks in the workplace.4
1 Premier's Circular 2017/07 Family and Domestic Violence – Paid Leave and Workplace Support <HTTPS://WWW.DPC.WA.GOV.AU/GUIDELINESANDPOLICIES/PREMIERSCIRCULARS/PAGES/2017-07-FAMILY-AND-DOMESTIC-VIOLENCE-PAID-LEAVE-AND-WORKPLACE-SUPPORT.ASPX.>.
2 Australian Institute of Health and Welfare, 'Family, domestic and sexual violence in Australia' (2018) < https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true >.
3 Australian Institute of Health and Welfare, 'Family, domestic and sexual violence in Australia' (2018) < https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true >.
4 Suellen Murray and Anastasia Powell, 'Working it out: Domestic violence issues and the workplace' (Australian Domestic & Family Violence Clearinghouse, RMIT University, 2008).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.