Published 28 February 2019
In December 2018, the Fair Work Act 2009 (Cth) (FW Act) was amended to insert a new entitlement in the National Employment Standards (NES) being five days of unpaid family and domestic violence leave. The new entitlement extends the decision of the Fair Work Commission in March 2018 to grant five days’ unpaid leave to employees covered by modern awards, to all national system employees, being the vast majority of the Australian workforce.
Family and domestic violence is defined in the FW Act as violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful.
Under section 106B of the FW Act, the entitlement is available to an employee if:
– the employee is experiencing family and domestic violence; and
– the employee needs to do something to deal with the impact of the family and domestic violence leave; and
– it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.
The type of circumstances which might require leave are not set out in the FW Act. Examples of situations in which employees who are affected by family and domestic violence leave might require family and domestic violence leave include:
1. to attend medical or counselling appointments;
2. to move into emergency accommodation and seek more permanent safe housing;
3. to attend court hearings;
4. to attend police appointments;
5. to access legal advice;
6. to organise alternative care or educational arrangements for their children.
The entitlement is available in full at the commencement of an employee’s employment and each anniversary of the commencement of employment rather than accruing progressively. It does not accumulate from year to year. All types of employees, including full-time, part-time and casual, will be able to access the leave. The entitlement will be available in full to part-time and casual employees rather than being pro-rated as occurs with certain other leave entitlements.
Employee obligations – Notice and evidence requirements
Under the FW Act, in order to access family and domestic violence leave, an employee must provide to their employer:
1. notice of the taking of leave as soon as practicable (which may be a time after the leave has started);
2. information about the expected period of the leave; and
3. if required by the employer, evidence that would satisfy a reasonable person that the leave is taken for the prescribed purpose.
Such evidence requirements are similar to the current personal leave requirements to provide evidence of the type which would satisfy a reasonable person. Examples of evidence an employee might provide to their employer to demonstrate the employee took the leave to deal with family and domestic violence would include:
– documents issued by the police service;
– documents issued by a court;
– family violence support service documents; or
– a statutory declaration from the employee.
The way an employee can notify the employer that they wish to access family and domestic violence leave is a matter for the employer. There are no set rules in the FW Act, but in order to communicate the process to employees, the employer could introduce a policy, or have a general statement on the intranet accessible by employees so they know what the employer needs them to do in the event they need to access the leave. Often a senior Human Resources representative might be nominated as the designated contact point, who is sufficiently experienced to handle the matter sensitively and confidentially. This may assist in achieving the confidentiality requirements of the FW Act by restricting the number of employees who need to be informed, and a Human Resources representative may be best placed to deal sensitively with employees suffering from domestic or family violence.
Information concerning an employee’s personal situation and their experience of family and domestic violence is by its very nature very sensitive, and it needs to be handled with great care. Section 106C of the FW Act seeks to protect the employee’s privacy, by putting an obligation on the employer to ensure (as far as practicable) information provided to the employer from an employee who accesses this leave remains confidential. The level of confidentiality an employer must observe, including in relation to employee records, is significant and largely unprecedented. Although most employers do attempt to observe the confidentiality of employee records, such records are exempted from Privacy legislation and breaches of confidentiality by the employer. To ensure compliance with the new obligation under section 106C of the FW Act, many employers may, therefore, need to review their systems to ensure that family and domestic violence leave can be accessed by employees without any breach of confidentiality.
Employers are not prevented from disclosing information however if it is required by law, or necessary to protect the life, health or safety of the employee or another person.
For some larger employers, the payroll or leave software may need to be modified to create a new category of unpaid leave to record the employee’s use of the new entitlement. Considerations include the following:
– It may be necessary to code the leave in such a way that the employee’s privacy is maintained, and to consider how any domestic and family violence leave taken will appear on the employee’s pay slip.
– If the employer has an online portal for employees to apply for leave, this may also need to be modified to provide for the new leave category, and consideration given as to whether this leave request is sent to the immediate supervisor for approval, or directly to a nominated HR representative.
– A full five days leave will accrue on the anniversary of each employee’s commencement of employment which is a different approach to most other types of leave.
However, for most small to medium employers, modifying payroll, employment records and payroll software to create a new category of leave to record the employee’s use of the entitlement may not be necessary if a high level Human Resources or management representative is the contact point for employees wishing to access the leave. A “leave without pay” manual adjustment could then be made in the employee records as a one off, with the notation regarding the purpose of the leave being done in a confidential manner.
Hopefully your employees will never need to utilise the new domestic and violence leave provision in the NES, however given the sensitive nature of family and domestic violence, and the confidentiality obligations in the FW Act, it is important to have processes in place in case it does occur.