What you need to know about Family and Domestic Violence Leave (“FDV”)

Since 2018 the National Employment Standards (“NES”) have made a provision for 5 days unpaid domestic violence leave as a minimum entitlement for all federal system employees, which is most people.

Domestic violence leave allows employees to take leave if they need to deal with family violence and/or domestic violence and it is not practical for them to do so outside of their ordinary hours of work. The employee could take the leave to go to court, communicate with the police or take steps to ensure their safety or the safety of their family.

The Fair Work Commission (“FWC”) recently completed the 4 yearly review of modern awards. Their employer survey suggested that one in 5 organisations already provide employees with some form of FDV and that many employers are supportive of their employees in this situation.

Some registered agreements or enterprise awards may provide that employees are entitled to less than 5 days unpaid domestic violence leave. However, the NES are the minimum employee entitlements that must be provided to all employees. If the terms of an award or agreement are less than the NES, the NES applies. There are no circumstances in which an employee in Australia is not entitled to five days unpaid family and domestic violence leave each year.

What is the legal definition of domestic violence?

Family and domestic violence is any form of violent, threatening, or abusive behaviour by a close relative of an employee that is trying to coerce or control the employee or causes the employee harm or to be fearful. It can be a close relative, the employee’s current or former spouse/de-facto partner, child, parent, grandparent, grandchild, or sibling. It can also include your former spouse’s mother, brother, etc if they are abusing you / your employee they are eligible for family and domestic violence leave.

Who is eligible for domestic violence leave?

Under the NES, all employees in Australia - full-time, part-time, and casual - are entitled to 5 days of unpaid family and domestic violence leave each year. Unlike annual leave, sick leave and carer’s leave which build up over time, domestic violence leave can be accessed by an employee from the day they start work. However, the 5 day’s leave does not roll over each year but instead is renewed every 12 months.

An employee can access the leave as they need it; they do not have to take all 5 days at once. Instead, they can take a single day or multiple days, whatever best suits their circumstances. While employees are only entitled to the five unpaid days each year, with the employer’s agreement, an employee can take less than one day at a time or if they can access more than five days. The leave does not need to be taken all at once and can be taken as single or multiple days.

When can you take domestic violence leave?

An employee can take family and domestic violence leave at any time, they just need to provide their employer with notice as soon as the can. The leave notice should detail the period or expected period, that the leave will be taken. In some circumstances, the notice for leave can be provided after the leave has been taken. It is considered the best practice to give an employer the notice as soon as possible so they can make any necessary changes to rostering or other adjustments.

What can employers do when asked for domestic violence leave?

In Australia, an employer is entitled to request that the employee provide evidence to show that they took the leave to deal with family and/or domestic violence. If the employee fails to provide notice or the requested evidence, the employee may not be entitled to take the leave at that time. Employers can request that employees provide evidence for as little as one day or less of unpaid domestic violence leave.

What is the Significance of the FWC review?

The review has made some significant findings. Nothing that those of us working in the area of family law and domestic violence were not acutely aware of, but it is of significant value to have it formally recognised in the broader workforce.

Some of the key acknowledgments:

· FDV disproportionately affects women (1 in 4 women)

· Employment is an important pathway out of violent relationships

· FDV has significantly increased during COVID and has a significant adverse effect on those who experience it as well as their families and the general community;

· Women who experience FDV have more disrupted work history, lower personal incomes, more frequent job changes and are more likely to be employed in casual or part time roles.

· FDV is both a cause and consequence of gender inequality

· Employees who experience FDV often face financial difficulties as a result, e.g. relocation costs, become a sole parent and may suffer economic harm as a result of disruption to workplace participation

The FWC has formed a provisional view in that a model FDV clause will be inserted in 123 modern awards. It will include 10 days per year paid FDV leave for full time employees and this will be pro-rata for part-time employees. The 10 days will accrue (like annual leave) over the year and will be capped at 10 days; it will not accrue year on year. It will be accessible in advance and will be paid at the employees’ base rate of pay. The definition of domestic violence will be that set out above from the Fair Work Act 2009.

The aim of the paid FDV leave is to help individuals maintain their economic security and to the extent that the leave is able to reduce FDV, the hope is that it will improve workplace productivity and efficiency. While there is a cost to employers of a further 10 days paid leave, the hope is that it will bring more stability to the workforce overall. The provision has not come into effect yet. However, this is the provisional view of the FWC and in some form it appears likely that this will be adopted in the modern awards.

The interesting thing to track over time will be employees’ willingness to come forward to apply for the leave. As we know from working in the area of DV for many years, there is often a lot of shame or embarrassment surrounding DV which keeps people silent. The acknowledgements made in this review will hopefully lead to more exposure and the community in general supporting those who have been subject to FDV and ultimately a decrease in violence against women and children.

By Kathryn Lewis & Enda Byrne

Voice Lawyers would be delighted to assist your business to navigate the complexities arising from any employment law issues you may be having or just to answer your employment law queries.

This article is general in nature and is not legal advice. If you need help with an employment law matter, family law matter or domestic violence Voice Lawyers is here for you.

Speak to us at Voice Lawyers for advice and representation call 02 9261 1954, email us at voice@voicelawyers.com or use the link on our website to book a consultation.