Employers now required to provide paid domestic violence leave

On 28 July 2022, the Federal Government introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Amending Act) which was approved by the House of Representatives and the Senate and is now pending Royal Assent.  The Amending Act seeks to amend the Fair Work Act 2009 (Cth) (Fair Work Act) by creating an entitlement to ten (10) days paid family and domestic violence leave for “eligible employees”.

Proposed amendments to the Fair Work Act

At present, section 106(A)(1) of the Fair Work Act provides “An employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period.”  Under the Amending Act, all classes of employees (including part-time and casual) will be entitled to ten (10) days of paid family and domestic violence leave in a twelve (12) month period.  Employees will be entitled to this leave as soon as their employment commences, and it will not need to be accrued over time to be eligible.

Paid domestic violence leave will have to be provided by all employers

This new class of leave will be effective under the National Employment Standards (NES) from 1 February 2023 for employees of non-small business employers (more than 15 members of staff) and from 1 August 2023 for employees of small business employers (less than 15 members of staff).

Furthermore, section 106B(2) of the Fair Work Act currently defines family and domestic violence as:

“violent, threatening or other abusive behaviour by a close relative of an employee that:

(a) seeks to coerce or control the employee; and

(b) causes the employee harm or to be fearful.” 

The Amending Act will amend the definition to:

“Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that:

(a) seeks to coerce or control the employee; and

(b) causes the employee harm or to be fearful”.

What do employers need to satisfy themselves to authorise this type of leave?

An employer may ask their employee to provide evidence to prove that they took leave for family and domestic violence reasons.  If an employee fails to do this, the employer may not grant them paid leave.  The evidence provided by the employee may include:

• documents issued by the police service;
• documents issued by a Court;
• family violence support service documents; or
• a statutory declaration.

Employers’ confidentiality obligation

Employers have to keep any information they receive from employees for a family and domestic violence leave request confidential.  This includes the information given in the notice to request leave and any evidence an employee provides in support of this request.  Section 106C of the FairWork Act provides:

• Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.
• Nothing in this Subdivision prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Employers should consult with their employees to discuss and agree on how this sensitive information will be handled.

What happens if an employer fails to comply?

If an employer fails to comply with the proposed paid family and domestic violence leave entitlements, employers and individuals such as managers, may be subject to substantial monetary penalties and other Court orders as provided in the Fair Work Act.

Takeaways

Employers must ensure that they comply with the new proposed leave entitlements in order to protect themselves, and their employees.  The FairWork Ombudsman provides an Employer Guide to Family and Domestic Violence which provides ways in which employers can support employees affected by family and domestic violence.

Links and further references

Legislation

Fair Work Act 2009

Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022

Further information about paid domestic violence leave for employees

If you are an employer and need advice on paid domestic violence leave for employees, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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