From an employer point of view, giving staff yet more opportunities to stay away from work by providing more leave entitlements may seem like a bad thing. For those of us, however, who have managed staff or have had friends or relatives who have experienced family or domestic violence, we would be aware that the trauma that the person is going through is likely to be compounded by an employer threatening to dismiss the employee for not coming to work.
Raising awareness and addressing the issue of domestic violence have been gathering impetus over the last few years with White Ribbon campaigns and the very active role played by the National Rugby League (NRL). The recent report by the Australian Institute of Health and Welfare entitled Family, domestic and sexual violence in Australia, 2018 included some horrifying context – an average of one woman a week and one man a month were killed by a current or former partner.
Victims who experienced family or domestic violence, after suffering the immediate trauma of the actual violence, then required time for medical appointments, to find alternative accommodation, obtain legal advice, attend court and seek financial assistance and other support for themselves and any children. A KPMG study in 2016 found an estimated cost to the community of $22 billion annually which included healthcare costs, lost productivity, damage to property, and replacement costs incurred as a consequence of domestic violence.
After a lengthy period of negotiation between employer and union representatives, as of 1 August 2018, almost all modern awards now contain an entitlement of up to five days of unpaid leave each year for employees dealing with the effects of family and domestic violence.
What is Family and Domestic Violence?
The new entitlement defines family and domestic violence as "violent, threatening or other abusive behaviour by an employee's family member that:
- seeks to coerce or control the employee; or
- causes them harm or fear.’’
The Leave Entitlement
An employee is entitled to take the family and domestic violence leave if the employee is:
- experiencing family and domestic violence, and
- needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.
The types of “something to deal with” as contemplated by the Fair Work Commission include making arrangements to relocate for the safety of themselves or a family member, attending urgent court hearings or accessing police services.
Unlike other types of leave, an employee does not accrue it over time - the full five days are available at the beginning of each year of service. Furthermore, it is available in full, available to part-time and casual employees and is not pro-rated. However, if the leave is not taken in that year, it does not accumulate.
In another departure from normal practice, there is no requirement that any paid leave entitlements, such as personal leave or annual leave, be taken before the unpaid family and domestic violence leave can be accessed. An employee may choose to take their paid leave instead, at their discretion.
Evidence must be provided to the employer to substantiate the leave, but the type of evidence may include documents issued by the police, a court, or a family violence support service.
Does it Apply to all Employees?
The answer is not straightforward. Because the entitlement arose through the federal awards and not as a National Employment Standard (NES) under the Fair Work Act 2009 (Cth), it only applies to employees who are covered by those federal awards. Staff coming under the Educational Services (Teachers) Award and the Educational Services (Schools) General Staff Award on the face of it are covered by this provision. However, the new award provision does not apply to:
- employees who are award-free
- employees who come under an enterprise agreement (or, in the case of, for example, New South Wales independent schools, multi-enterprise agreements) even if they appear to also come under an award
- employees who are covered by state awards (public servants and some Western Australian schools)
- enterprise awards
This means that in the case of independent school employees covered by the two Educational Services awards, the family and domestic violence leave entitlement only applies to them if they are not covered by an enterprise agreement.
Employees Not Covered by the Award Entitlement
Some enterprise agreements already provide for leave for dealing with family or domestic violence, whether as paid leave, unpaid leave, or as part of paid personal /carer’s leave. For employees who do not have any entitlement to leave in these circumstances, an employer is at liberty to develop their own policy which provides leave of some kind to assist employees in family and domestic violence situations. Some employers already provide for leave either on a case-by-case basis or as a communicated policy.
For employees who have no award, enterprise agreement or compassionate employer, their only hope is for the federal government to live up to its promise to amend the Fair Work Act to include a more universal entitlement to family and domestic violence leave. At time of publishing there has been no legislative movement yet.