Things you need to know about domestic violence leave entitlements

ELM: Liz, can you tell our readers what has sparked this discussion around paid domestic violence leave in Australia? What is the current allowance, if any, and what has been proposed?

LIZ: Family violence is a serious societal issue affecting families across the country and worldwide.  In recent years there has been increased awareness of the issue, prompted in part by victims speaking out against violence (such as Rosie Batty, who was also named Australian of the Year in 2015 for her activism in this area) and by government intervention, including the Royal Commission into Family Violence.

From an employment perspective, employers and unions have contributed to the discussion about how victims of family violence can be supported.  While there is currently no universal entitlement to domestic violence leave, there have been recent moves to legislate domestic violence leave entitlements. 

Last year, the Queensland government passed a Bill providing public sector employees with an entitlement to 10 days’ paid domestic violence leave.  The Queensland Premier has also called for an amendment to the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (Act) so that paid domestic violence leave is a safety net entitlement like other forms of paid leave such as personal/carer’s leave.

In addition, during the course of the 4 yearly modern award review, the Australian Council of Trade Unions (ACTU) has raised as a common issue that paid domestic violence leave should be included in all modern awards (although I note that the future of 4 yearly modern award reviews is uncertain).  The ACTU submitted that modern awards should be amended to include the following entitlements, subject to meeting eligibility requirements:

• 10 days’ paid domestic violence leave per annum;
• where paid leave has been exhausted, 2 days’ unpaid domestic violence leave on each occasion of family violence;
• use the NES entitlement to paid personal / carer’s leave for the purpose of providing care and support to someone experiencing family violence; and
• additional flexibility to that provided under section 55 of the Act, including changes to working hours, duties and work location.

ELM: For those employers that have included paid domestic violence leave into their workplace policies and agreements, how have you seen this detailed?

LIZ: Many employers — especially in the last five years — have included domestic violence leave clauses in their enterprise agreements.  The Productivity Commission’s report on its Workplace Relations Framework Inquiry noted that 840 enterprise agreements approved between 1 January 2012 and 30 June 2015 — covering more than 630,000 employees — contained a clause regarding domestic violence leave.

There appear to be two general approaches to domestic violence leave taken by employers (whether in an enterprise agreement or company policy):

1. The provision of paid domestic violence leave which is in addition to other forms of leave such as paid personal leave (I have seen this range from 2 days to 20 days’ paid domestic violence leave per year); or
2. Enabling employees to access paid personal/carer’s leave for family violence reasons such as to seek medical or legal assistance, counselling, relocation and to make other safety arrangements.

It appears that the majority of employers have elected to provide employees with specific paid domestic violence leave that can be used in addition to other forms of paid leave.

ELM: For those considering to add it in, what advice do you have for them in terms of how it is included?

LIZ: Carefully consider the terms of any domestic violence leave policy or enterprise agreement clause, and in particular, the definitions used.  For example, what types of violence does the definition of ‘domestic violence’ cover (physical, emotional, financial etc) and does it extend, for example, to violence from all family members, domestic partners and/or household members.

Employers also need to be careful about allowing employees to access paid personal carer’s leave for domestic violence reasons. Domestic violence is not a specifically recognised purpose under the leave provisions of the NES, so care needs to be taken to ensure that employees who use paid personal/carer’s leave for this purpose are left with sufficient paid personal/carer’s leave that can be taken for NES purposes.  Otherwise, there is a risk that an employee will be entitled to access additional leave under the NES for personal illness/caring purposes and the employer may not have budgeted for this.  This is generally manageable where an employer provides additional paid personal/carer’s leave.  It may, however, be problematic where an employee only accrues the statutory minimum of 10 days’ personal/carer’s leave per year.

ELM: In your opinion Liz, besides the possible financial cost (which where a lot of the debate on this topic lies), what other potential risks would you suggest employers look out for?

LIZ: While there is certainly a greater awareness of family violence issues, I think a number of victims may still feel embarrassed or fearful about admitting that they are experiencing family violence, particularly to their employer.  In my view, this will be a significant barrier to victims accessing paid domestic violence leave.  Employers can try to address this by, for example, simplifying the application process and putting in place measures to ensure, to the extent possible, applications are confidential.  However, I do not think company policies and industrial instruments can ultimately solve what is a societal issue.

In addition, there is always a small risk that unscrupulous employees will attempt to take advantage of the paid leave and seek to access it despite not experiencing family violence.  In these circumstances, employers will need to carefully balance any desire to simplify the application process so as not to create more stress for victims, and the need to obtain sufficient information to ensure only eligible employees access the leave.

ELM: We’ve heard that the FWC is unlikely to make a decision on the issue until later this year, but in the meantime, how can employers start learning more about this possible change and what can they do to prepare themselves?

LIZ: I think employers can expect that domestic violence leave will appear more commonly in unions’ bargaining agendas. Employers can prepare for this by having regard to the array of publicly available information about domestic violence leave.

As a starting point, I recommend that employers review the submissions made about domestic violence leave as part of the 4 yearly modern award review.  In addition, employers should review enterprise agreements that are available on the Fair Work Commission website (particularly public sector and large employer enterprise agreements) as examples of how employers have addressed the issue.

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About Liz Grey:

Liz specialises in all aspects of employment, industrial relations and discrimination law with particular experience in employment law litigation across numerous Australian jurisdictions and advising on executive employment contractual matters and exits.

Liz has extensive experience advising clients on effective management of work-related grievances and investigations, performance management and disciplinary matters, and termination of employment. Liz also works closely with Ashurst’s corporate team on employment aspects of business sales and restructuring.

She has assisted clients with workforce establishment and restructuring, enterprise bargaining, interpretation of industrial instruments and the resolution of industrial disputes.