Earlier this year, the Fair Work Commission Full Bench (FWCFB) ruled on updating all industry and occupation awards to include a clause enabling most employees to take up to 5 days of unpaid family and domestic violence leave (FDV Leave) per year.
As of 1 August 2018, 2.3 million Australian employees under Modern Awards now have access to the FDV Leave. Both permanent and casual employees are entitled to FDV leave which renews every 12 months, although does not accumulate if not used. The FDV leave entitlements apply to all employees covered by a modern award, excluding those covered by enterprise awards and State reference public sector awards.
What is family and domestic violence?
The definition of Family Domestic Violence under s 4AB of the Family Law Act 1975 (Cth) was updated in 2011 and widened the definition to include coercion and control, which do not always involve physical violence or threats. As outlined in the FWC’s decision, FDV means ‘violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful’. This incorporates physical, psychological, emotional or sexual violence which may involve threats, repeated degradation, humiliation or other abusive behaviour inducing fear. It may also include socially isolating the family member or denying them of their financial autonomy.
Taking the unpaid leave
Employees can use the FDV Leave entitlement when they need to do something to deal with the impact of Family Domestic Violence they are experiencing, and which is impractical for the employee to deal with outside of work hours.
Notice and evidence requirements
When taking the Leave under the new clause, the employee must advise their employer as soon as practicable and may do so after FDV leave has actually started. Employees are also required to inform their employer of the expected period of leave and provide evidence if requested by their employer.
Types of evidence stipulated by the Fair Work Ombudsman can include:
- documents issued by the police service;
- documents issued by a court;
- family violence support service documents; or
- a statutory declaration
An employer may request this evidence for leave taken for as little as 1 day or less and it must ‘convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence’.
Employers have a duty to take all reasonably practicable steps to keep information relating to an employee’s situation confidential.
Employers may only disclose such information if:
- it is required by law; or
- it is necessary to protect the life, health or safety of the employee or another person.
Information provided about Family Domestic Violence involving an employee is highly sensitive and should be treated with due care.
In Australia, one in three women will be affected by domestic violence. There have been arguments from the Australian Labor Party (ALP) and Unions to introduce 10 days paid domestic violence leave. However, on examination of the submissions and evidence the Fair Work Commission concluded that five days unpaid leave was a “fair and relevant minimum safety net entitlement”. There is scope for change to this entitlement in the future as the ALP have promised to ensure every worker has access to ten days of paid domestic violence leave if elected.
If you require any assistance in adjusting employment contracts in light of the new clause, satisfying evidentiary requirements or handling sensitive information relating to FDV leave, please contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.