As we approach the end of the financial year, many employers will be reviewing their human resources/employee policies and procedures. During this process, employers may wish to take the opportunity to introduce a policy on domestic violence leave, due to recent changes in the law. It is important for employers to be aware of the changes, understand the new entitlements and ensure their policies enable them to lawfully handle domestic violence leave applications.
On 12 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) took effect. This created a new entitlement in the National Employment Standards (NES) for employees to take up to five days unpaid leave to deal with family and domestic violence.
As civil penalties apply for a contravention of the NES, employers must not refuse a lawful request to take domestic violence leave. The current maximum penalty for contravention of the NES is $12,600 for an individual and $63,000 for a body corporate.
Why and what are the changes?
Domestic violence is a prevalent problem – intimate partner violence causes more injury, disability and death than any other risk factor for women aged 25-44 1 – but domestic violence is still highly stigmatised and widely misunderstood by the community. The legislative change signals both a practical and policy-based change in approaches to domestic violence.
The new leave entitlements are intended to empower domestic violence victims by validating their need to take time to deal with abuse without jeopardising or impacting their employment.
Under the new provisions, employees are entitled to take unpaid leave if they are experiencing family or domestic violence and need to deal with the impact of the family or domestic violence and it is impractical to do so outside their ordinary working hours. The entitlement is: 5 days unpaid leave per 12-month period; available to all employees, including part-time and casual employees; not pro-rated to part-time hours of work; available from the beginning of the 12-month period (i.e. it does not accrue over the period); does not accumulate year-to-year; and is not payable on termination.
'Family or domestic violence' is defined as violent or threatening behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful. 2
Under the new provisions, an employee does not have to provide evidence they are experiencing domestic violence, unless their employer requires it. The standard of evidence required is to satisfy a reasonable person the employee is suffering domestic abuse and it is impractical to deal with the implications outside of working hours. The sort of evidence an employee might provide includes intervention order documentation, evidence of a lawyer's appointment or a medical certificate.
The NES impose strict confidentiality requirements on an employer regarding any information or evidence provided by the employee in the course of requesting or taking domestic violence leave. The obligation is for an employer to, so far as is reasonably practicable, ensure confidentiality, except when disclosure is required by law or is necessary to protect the life, health or safety of the employee or another person. Failure to comply with this obligation would contravene the NES, exposing an employer to civil penalties.
Confidentiality is essential to protect employees from the risk of discrimination, victimisation or other adverse action. Confidentiality also protects the victim from inquiries by the perpetrator.
Domestic violence is a significantly unreported offence;3 victims fear the repercussions of involving authorities, fear the loss of relationships, and may be financially dependent on the perpetrator. This reform intends to encourage the ability of victims to obtain support with the endorsement of their employer.
It is critical not to subject an employee or prospective employee to any detriment in connection with the new entitlement to domestic violence leave. If an employer treats an employee/prospective employee adversely as a result of requesting, proposing to take or taking domestic violence leave, the employer is likely to contravene the general protections provisions of the Fair Work Act 2009 (Cth). Such contravention exposes an employer to civil penalties (up to $12,600 for an individual and $63,000 for a body corporate) and court orders to pay compensation and damages.
What should a policy include?
At a minimum, an employer's policy on domestic violence leave should explain the entitlement to take domestic violence leave, be compliant with the NES and not misrepresent the entitlements. A policy should also set out the type of evidence the employer will usually expect in support of an application for the leave and explain about confidentiality.
Despite the minimum prescribed entitlement, some employers have elected to offer periods of paid domestic violence leave and or longer periods of paid/unpaid leave. This can be done in a policy or employment agreement (at an employer's discretion).
Employers are subject to a number of important practical consequences resulting from these changes. These include avoiding contravention of the NES and preparing to receive employee applications for domestic violence leave. Employers should take the opportunity to implement a domestic violence leave policy to ensure all their employees understand the new entitlements. In turn, this will reduce the employer's risk of exposure to liability arising from a manager or supervisor refusing to grant the leave or mishandling an application/information regarding the leave.
Gilchrist Connell has a team of dedicated employment lawyers and can assist employers in drafting such policies or advising about applications for domestic violence leave.
1Australian Institute of Health and Welfare,
'Family, domestic and sexual violence in Australia' (media
release, 28 February 2018) xi.
2 S 106B(2) Fair Work Act 2009 (Cth).
3 Ibid 100.
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.