Implementing domestic and family violence leave

The Domestic and Family Violence leave amendment to the Fair Work Act 2009 (Cth) (FWA), passed on 27 October 2022, amends the National Employment Standards (NES) to introduce 10 days of paid leave for victims of domestic or family violence for employees each year (Leave).[1] The Leave will come into effect from 1 February 2023.[2]

The increase to this Leave entitlement is an important step in promoting workplace gender equality, providing support for victims to leave domestically violent relationships and ensuring that no worker must choose between their employment and their safety.

In Australia, 1 in 6 women, and 1 in 16 men, experience family or domestic violence at some stage through their life,[3] and domestic and family violence has become a prominent issue in recent years. Employers should therefore anticipate persons in their workforce requiring access to this Leave.

As such, employers need to have a robust policy in place to ensure they can support and assist employees requesting Leave whilst maintaining their confidentiality and safety as this is not only best practice, but it is a legislative requirement.[4]

The purpose of this article is to consider the how employers can implement the Leave, canvass the challenges to employee safety that may arise when an employee is requesting or taking the Leave, and to provide recommendations on how to implement the Leave in a way that promotes the privacy of employees.

When an Employee is Entitled to take the Leave

An employee will be entitled to access the Leave at any time during their employment unless the entitlement has been exhausted in the last 12 months, as the Leave entitlement ‘resets’ annually. There is no minimum employment period required for an employee to become entitled to the Leave.

Identifying the need for Leave

When an employee requests the Leave, it is likely that the employee will make the request either to a direct supervisor they trust, directly to a relevant HR team member, or to a higher-level executive to ensure that the details of their Leave are not disclosed more widely to their colleagues.

Alternatively, an employer may observe behaviours which indicate that an employee is a victim of family and domestic violence, such as:

• excessive absence or lateness;
• sudden change in productivity;
• unexplained bruises or injuries;
• unusual work breaks;
• anxious or distracted behaviour;
• lack of concentration; or
• inability to take work trips; and/or receiving excessive personal calls.[5]

While an employer is not subject to a direct obligation to discuss any of these signs with their employee if there is no risk of harm present within the workplace, a supportive workplace can ease the emotional, psychological and physical pain associated with family and domestic violence. Once Leave has been requested by an employee, it is critical that persons dealing with the request understand the sensitivity of the matter and the need to maintain confidentiality to protect the employee’s safety.

Confidentiality and Work, Health and Safety Issues

Employers must provide and maintain a workplace that is without risk to the health and safety of employees.[6] Therefore, while maintaining an employee’s confidentiality may seem onerous, employers must be mindful that their employee’s safety from domestic and family violence can give rise to work, health and safety obligations where the harm may occur in the workplace. In this regard, family and domestic violence may occur at work through work phones or email, when a worker is working home, or when a worker’s abuser is employed by the same entity. Consequently, it is important for employers to consider when, where, and how employees may be exposed to violence and implement control measures to reduce, as far as reasonably practicable, the risk to employee’s safety.

When considering confidentiality, it is important for employers to consider all instances of disclosure of the Leave, such as:

• payslips which indicate the Leave has been used could be seen by the abusive party;
• emails and text messages to private email addresses regarding the Leave which could be seen by the abusive party;
• phone calls which may be observed by the abusive party; and
• other parties within the workplace may be friends or relatives of the abusive party, or even the abusive party directly.

The above is not an exhaustive list of the considerations that employers may need to undertake, but it is demonstrative of the detailed considerations employers should keep in mind when ensuring confidentiality in respect to the Leave.

Policy Recommendations

It is recommended that employers have a policy in place that requires few people in its enterprise to be aware of the details of an employee’s request for Leave. This could involve having one dedicated senior staff member and one supplementary senior staff member who have training and authority to approve, deal with the allocation of the Leave. Additional training for supervisors and managerial staff which focuses on sensitivity, empathy and seriousness of the Leave is also recommended as best practice.

Employers should consider how to deidentify the Leave taken on payslips and how other employees are informed of the absence throughout the workplace to ensure that these practices do not reflect the real reason for the employee being on Leave. This could include the use of specific codes on payslips and general comments around being away from the office.

Crucially, before employers proceed to processing Leave requests, employers should first confirm the immediate safety of their employee, provide referral pathways and resources to the employee so the employee is aware of where they can seek help and ensure that the employee feels safe and secure at work.

A robust domestic and family violence policy and procedure is necessary for all employers to ensure they comply with their obligations under relevant legislation and to demonstrate a commitment to their employees’ safety. An effective policy should support employees experiencing violence and promote understanding in the workplace on how to take the Leave, whilst also prioritising confidentiality. It is important for employers to understand that they not only have an active role to play in supporting victims, but that they can actively help reduce barriers to leaving violent relationships.

Conclusion

Changes to the entitlement for domestic and family violence leave presents an opportune time for employers to consider whether their workplace policies and procedures are sufficient to meet their legislative obligations.

Gadens has extensive experience in advising and assisting employers in understanding leave entitlements and their obligations under legislation. Gadens can also assist employers with drafting or reviewing policies and assessing whether an employer is meeting their legislative obligations.

To enquire as to how Gadens may be able to assist, please contact Jonathon Hadley in Brisbane by email jonathon.hadley@gadens.com or phone 07 3231 1653.

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Authored by:

Jonathon Hadley, Partner
Melissa Sidney, Solicitor
Harrison Richards, Paralegal

[1] Fair Work Act 2009 (Cth).

[2] Ibid s 106A.

[3] Mission Australia, ‘Domestic and family violence statistics’, Mission Australia, (Webpage, 25 October 2022) <Domestic and Family Violence statistics | Mission Australia>.

[4] Fair Work Act 2009 (Cth) s 106C.

[5] Health Direct, ‘Domestic violence and abusive relationships’, Health Direct, (Webpage, 25 October 2022) < Domestic violence and abusive relationships – signs, effects and support | healthdirect>.

[6] Work Health and Safety Act 2011 (Cth) s 19.