Impact of Family and Domestic Violence Leave entitlements on Family Law cases

As part of its four yearly review of modern awards, the Fair Work Commission (FWC) has been considering submissions on the potential inclusion of family and domestic leave into those awards (see previous article here).

The FWC has now determined that such leave should be provided for in awards and has finalised the model clause for insertion into all modern awards providing an entitlement to family and domestic violence leave. The new entitlement may be summarised as follows:

• an award covered employee, including full-time, part-time and casual employees, is entitled to 5 days’ unpaid leave to deal with family and domestic violence;
• the leave is provided to an employee where they are experiencing family and domestic violence, they need to do something to deal with the impact of that violence, and it is impractical for the employee to do that thing outside their ordinary hours of work;
• practically the leave may be used by employees to make arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services;
• the leave is available in full at the start of each 12 month period of the employee’s employment, but it does not accumulate from year to year;
• by agreement between the employee and their employer, leave may be taken as a part day and the employee may be able to take more than 5 days’ unpaid leave;
• the employee must give their employer notice of the taking of leave as soon as practicable and must advise their employer of the expected period of the leave;
• if required by their employer, the employee must provide evidence that would satisfy a reasonable person that the leave is taken for the specified purpose. This evidence could include, for example, a document issued by the police service, a court or a family violence support service, or a statutory declaration; and
• the employer must take steps to ensure that any notice and/or evidence is treated confidentially.

The Federal government has also indicated that it will introduce amendments to the Fair Work Act 2009 (Cth) to ensure that this leave entitlement applies to not only award covered employees (by operation of this model clause), but to award-free employees as well.

The evolution of this new leave entitlement is an example of our employment law system being responsive to the personal and family circumstances of employees. What will be the impact of the introduction of this new leave entitlement on Family Law cases?

Family lawyers must marshal evidence relevant to issues in cases, whether the case is in court or out of court. Section 4AB (1) of the Family Law Act 1975 (Cth) contains a definition of family violence which reads:

“… family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”

The definition of family violence under the model award provision is similar, yet not the same; it reads:

“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.”

Section 4AB (2) of the Family Law Act sets out a long list of examples of behaviour that may constitute family violence including, among others, an assault, sexually abusive behaviour, stalking and intentionally damaging or destroying property. It will be interesting to see whether HR managers and employers more generally will be attentive to the examples provided under the Family Law Act when encouraging or approving family and domestic violence leave for employees.

Will employer organisations and unions develop guidelines in relation to the identification and assessment of behaviours that may constitute ”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? A high degree of congruence between our employment law and family law systems with respect to the identification of behaviours that may constitute family violence and how they cause a person to be fearful is an ideal to aim for.

From the perspective of family lawyers, there will be voluntary disclosure and requests for disclosure about statements made, or not made, to an employer by an employee in family law cases where allegations of family violence are made. For cases in court there may be an increase in the use of subpoenas to produce documents directed at the employer of a party that has alleged family violence, both in parenting cases and financial cases. It would clearly be contrary to the policy purpose of family and domestic violence leave if the disclosure requirements and other forensic aspects of family law matters inhibited employees from exercising such entitlements. This is a potential effect that managers, EAP counsellors and other health professionals and lawyers need to deal with sensitively.

Gadens has the expertise and experience to advise employers and other stakeholders on these issues and to ensure compliance with these new obligations. We also have family and relationship lawyers in our Melbourne and Sydney offices who provide strong client care for our clients in all types of family situations, including matters involving family violence.

Authored by:
Paul Lewis, Partner
Brett Feltham, Partner