The Fair Work Commission has decided that domestic violence leave will be covered by modern awards.
As part of its four-yearly review of modern awards, The Fair Work Commission has ruled on domestic violence leave.
UPDATE: This takes effect for most workers as of August 1, 2018 as relayed in this FWC decision
It has decided that workers covered by the awards will now be able to access five days of unpaid domestic violence leave a year. It has denied the ACTU’s push for it to be available on an uncapped, per occasion basis, but the amount of leave is still higher than the two or three days per annum suggested by employer parties.
“The circumstances faced by employees who experience family and domestic violence require a special response” and “family and domestic violence is a community issue and requires a community response”, the FWC said in its summary.
While the drafting of a model term that would give effect to the decision is yet to be finalised, it’s not too soon for HR professionals to begin preparing their organisations.
What HR needs to do
Trent Hancock, principal lawyer for Mcdonald Murholme, advises that “HR should prepare for the change by reviewing and updating existing policies and procedures to incorporate the new entitlement.” He also recommends employees be given information as to how the entitlement will interact with their existing leave.
AHRI has investigated how Australian HR professionals feel about domestic violence leave. One finding was that less than 20 per cent of organisations provide special training for dealing with employees who suffer from domestic violence. Given the recent decision, this might also need to change.
Evidence of family and domestic violence
Being entitled to leave is one thing, accessing it is another. Specifically, employees who want to seek domestic violence leave can be asked to provide evidence.
It’s not yet known what exactly that would entail, but if it’s in line with what the Fair Work Act currently requires for paid personal leave it would be evidence that “would satisfy a reasonable person”.
According to Hancock, the ACTU’s proposal is sensible and consistent with the Act. The ACTU suggested that such evidence may include “a document issued by the police service, a court, a doctor (including a medical certificate), district nurse, maternal and child health care nurse, a family violence support service, a lawyer or a statutory declaration”.
The ACTU also proposed that any sensitive information be kept confidential, except where disclosure is required by law to prevent a serious threat to the life, health and safety of any individual, says Hancock.
Limits of the law
Only employees who are covered by a modern award will have access to the new entitlement. “However, the Federal government has already flagged amendments to the Fair Work Act 2009 to ensure that the entitlement can be accessed by all national system employees,” says Hancock.
“Employees should also be aware that the entitlement will be available to both permanent and casual employees alike and will be available in full at the commencement of each 12 month period. However it will not accumulate from year to year.”
Last but not least, explains Hancock, employers should also be mindful that once it’s introduced, an employee is protected from any form of adverse action as a result of having exercised the right to take unpaid domestic violence leave.
Further legislative changes could be seen if the government changes. Currently, the Federal Labor Party has flagged that, should they gain power, they will aim to “provide for five days domestic and family violence leave in the National Employment Standards”. NSW Labor committed to a policy of 10 days of paid leave last December.
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Great initiative, but so sad that it’s unpaid – I can imagine that a victim will be loath to utilise due to financial impact that could result in more violence for them ….
There is paid domestic violence leave at my workplace but staff can only access once their sick leave is exhausted. This can then leave the staff member with no paid sick leave until their anniversary comes around. This puts them in a hard place especially if they are now the sole and primary caregiver for children. They may not have access to paid leave if their child is sick or if they are sick themselves.
We introduced paid domestic violence leave in our EBA 2 years ago and I’m so pleased as an organisation we were able to provide that to our staff. Understanding the financial impact this may have to organsations, but I hope this entitlement will be move to be paid as a minimum standard to help reduce the stigma around domestic violence and allow employees to get the supports they need to get through what would be a highly stressful and difficult time.
Great initiative. There will be need to sort out the conflict HR will face between responsibility to do due diligence to employees and keeping employee confidentiality – to report these to the authorities or not, knowing what they know when an employee takes this leave.
Will this entitlement be available to both victims and perpetrators of the domestic violence? As the nature or involvement may not need to be disclosed to the employer, I can see how this kind of entitlement can adversely be utilised by either party even if the original intent may be to assist the victims…
Will it be also available to a person living in the household or directly related to the person experiencing domestic violence?