Paid Family and Domestic Violence Leave To Be Introduced for Victims

KEY TAKE-OUTS

• The Fair Work Commission has announced its provisional view that all modern awards should be varied to include 10 days paid Family and Domestic Violence leave per year
• The Fair Work Commission has held workers should be able to access the leave on an annual basis at their base rate of pay
• The paid family and domestic violence leave will be in 123 industry awards implicating a minimum standard for approximately 2.66 million workers
• The provisional decision applies to full-time and part-time employees only

The Fair Work Commission has recently announced its view that all modern awards should be amended to include 10 days of paid Family and Domestic Violence leave per year. In this blog we set out the current law under the National Employment Standards which sets out an employee’s entitlements to family and domestic violence leave, what constitutes domestic violence and the circumstances under which an employee may access family and domestic violence leave, the driving factor and effects of the proposed reforms, and how eligible workers will be able to access paid leave for family and domestic violence.

The law currently for family and domestic violence leave

The National Employment Standards, which apply to all employees in Australia regardless of whether they are covered by an award, has entitled workers to five days of unpaid family and domestic violence leave per year since 2018. This is available to an eligible employee in full at the start of each 12-month period of the employee’s employment and does not accumulate from year to year.

An eligible employee may take unpaid family and domestic violence leave as a single continuous 5-day period, as separate periods, or even periods of less than one day by agreement with their employer. An employee and their employer may also agree that the employee take more than 5 days of unpaid leave to deal with the impact of family and domestic violence.

An employee may take unpaid family and domestic violence leave if:

• The employee is experiencing family and domestic violence; and
• The employee needs to do something to deal with the impact of the family and domestic violence, which may include arranging for the safety of the employee or a close relative, attending urgent court hearings, or accessing police services; and
• It is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

Employees that are covered by registered agreements, enterprise awards or state reference public sector awards may also be entitled to other paid or unpaid entitlements they can access in these circumstances. If the award or agreement provides less than the minimum entitlement standards imposed by the National Employment Standards, however, the National Employment Standards will apply by default.

What Constitutes Domestic Violence in the Context of Paid Family and Domestic Violence Leave?

‘Domestic violence’ is defined in a variety of ways across different areas of law. For the purposes of employment law and leave entitlements relating to domestic violence, the Fair Work Act 2009 provides that family and domestic violence is violent, threatening, or other abusive behaviour by a close relative of an employee that seeks to:

1. Coerce or control the employee; or
2. Causes them harm or fear

A ‘close relative’ is a person who is a member of the employee’s immediate family, such as a spouse or former spouse, de-facto partner of former de-facto partner, child, parent, grandparent, grandchild or sibling. A close relative of the employee is also a person who is related to the employee according to Aboriginal and Torres Strait Islander kinship rules.

The Driving Factor Behind Paid Family and Domestic Violence Leave

The 2018 Family and Domestic Violence Leave Decision [2018] FWCFB 1691, held that:

Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or become a sole parent; and may suffer economic harm as a result of disruption to workplace participation.

The Fair Work Commission has obtained information that from the age of 15, one in 4 women, and one in 13 men, experience at least one incident of violence by an intimate partner. The Commission has also revealed that family and domestic violence costs employers $2 billion annually.

Victims of domestic violence have also been found to have a more disrupted work history, are on lower incomes, have had to change jobs frequently, and are more likely to be employed on a casual and part-time basis, than other employees who do not have any experience of family and domestic violence. These findings necessitated the paid family and domestic violence leave reforms.

The Effect of the Reforms for Victims

The paid family and domestic violence leave will financially assist employees who are victims of family and domestic violence and seek to mitigate the disruptions to employment and income that can occur to victims. It will also provide victims of family and domestic violence with paid time away from work so that they are able to access relevant services.

Australian Council of Trade Unions president Michele O’Neil has already applauded the proposed reforms stating, “Access to paid family and domestic violence leave saves lives. No worker should ever have to choose between their income and their safety.”

The Effect of the Paid Family and Domestic Violence Leave for Employers

In addition to the benefits of the reforms for victims of family and domestic violence, implications of the reforms also arise on the employer.

The reforms will establish an important precedent for employers to follow, and obligate employers to further consider the potential risks under Work Health and Safety obligations which may arise in circumstances of family and domestic violence.

Employers should ensure that internal policies, including leave policies, are in place which adhere to Work Health and Safety obligations and consider the wellbeing and safety issues which may arise for employees who are exposed to family and domestic violence. It is also important that the employer works with the affected employee to provide support, conduct regular well-being checks on the employee, and maintain the confidentiality of the employee.

How Can Victims of Family and Domestic Violence Access the Paid Leave?

Unfortunately, the mechanics of the reforms are yet to be determined, but the Commission has indicated the following:

• The paid family and domestic violence leave should be in 123 industry awards implicating a minimum standard for approximately 2.66 million workers
• The paid leave will be available for full-time and part-time employees only
• The paid leave will accrue from year to year, and employees can access the leave before it is accrued
• The family and domestic leave will be paid at the employee’s base rate of pay

Watch this space!

If you or someone you know is experiencing family violence, the following contacts are available for support:

• 1800RESPECT (1800 737 732) or 1800respect.org.au – the National Sexual Assault, Family and Domestic Violence Counselling Line. This service is free, confidential and open 24 hours a day and supports anyone affected by domestic and family violence and sexual assault.
• Lifeline (13 11 14) or lifeline.org.au – a crisis support helpline to help put you in contact with a crisis service in your state.
• Kids Helpline (1800 55 1800) or kidshelpline.com.au – a free telephone and online counselling service for young people aged between 5 and 25.