Domestic Violence is a stain on all communities.  It is simply unacceptable.  There is no question or argument that greater efforts are needed to ensure that all Australians are safe in their own homes and free from the physical and mental abuse that can (and does) destroy lives.  But should businesses be paying for 10 days paid domestic violence leave per year for ALL workers (including casuals)?  This serious situation has led to this very serious question coming from the Fair Work Commission as it contemplates a variation application that would see 10 days paid DV leave per year for ALL workers.  Your thoughts and input is needed into this important discussion.

The Australian Council of Trade Unions (ACTU) has put forward a claim to the Fair Work Commission (FWC) to vary all Awards to include a new clause that provides ALL employees (including casual employees) with 10 days paid family and domestic violence leave per year, and a further 5 days of unpaid leave for each occasion it is needed throughout the year after the paid leave is expended.

The Fair Work Commission is writing to some businesses to get an understanding of the operation and impact of the current Family and Domestic Violence Leave entitlements and the insights to how the proposed changes would impact the business.

ACAPMA has been engaging with the Fair Work Commission on this matter for some time and is also seeking members thoughts and feedback that will be consolidated into a final submission in the coming weeks.

“Domestic violence is completely unacceptable, and all Australians should be coming together to do what we can to irradicate this scourge and protect, shelter and heal the victims.  This is a fact.  Workplaces, and particularly small businesses, should not be put into the position of arbiter.  The proposal as it stands creates several concerns and raises the very real question of whether the decision to award paid leave, and the payment of the leave itself, should not be something that the government and specialised domestic violence services should be providing in a consistent, whole of society approach” outlined ACAPMA CEO Mark McKenzie.

“This is an important issue that deserves real discussion, attention and action.  But it is important that that action is directed to the most useful and impactful outcomes, and that perverse outcomes are avoided.  It is a great thing that the Fair Work Commission is seeking the input of businesses directly.  ACAPMA is also seeking member feedback so that outcomes are sensible and sustainable” concluded Mark.

Current DV Leave

The ACTU proposal represents a significant departure from the current provisions for UNPAID family and domestic violence leave that were folded into the Fair Work Act and the National Employment Standards in 2018.

Family and domestic violence is defined by the Act as; “Violent, threatening or other abusive behaviour by a close relative of the employee that seeks to coerce or control the employee and causes the employee harm or to be fearful”

In understanding this definition it is important to note that;  Close relative is defined as a member of employees immediate family or relative by Aboriginal or Torres Strait Islander kinship rules.  Where Immediate Family is defined as; a spouse, de-facto partner, child, parent, grandparent, grandchild, sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de-facto partner of the employee.

The current DV leave entitlement operates as follows;

  • Each employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period,
  • The entitlement is available from day 1 of employment,
  • The entitlement does not accumulate from year to year,
  • The entitlement is available to casual and permanent staff,
  • The leave is available if all of the following conditions are met; the employee is experiencing family and domestic violence AND the employee needs to do something to deal with that AND it is impractical for the employee to do that something outside of the employees usual work hours.  So if the employee is suffering from domestic violence and has to attend court (or move house, or consult with a therapist/doctor etc) and this cannot practically be done when the employee is not usually at work, then the employee is entitled to take unpaid domestic violence leave,
  • Confidentiality must be maintained by the business.

Applying for DV leave involves a process of notice and evidence that the Fair Work Act also regulates;

  • The employee must provide notice of the leave that is being taken, that it is going to be family and domestic violence leave that is taken, the duration of the leave and must provide any evidence that the business requests to verify that the leave being taken is appropriate,
  • Evidence that a business can request and must accept is subject to the reasonable person test – so if the evidence requested or provided would satisfy a reasonable person that the employee was entitled to take the leave then it should be accepted.

Concerns with proposed DV Leave

The proposal raises several concerns, some of which build on and compound concerns that apply to the current entitlement.

“Regarding the current system Members have expressed concern over the operation of evidence requirements.  Members have expressed that they are concerned that asking for any evidence may exacerbate what is already a stressful situation for their employees.  The idea of asking for proof that there is abuse or violence that has caused harm or fear, that has come from a close relative from a staff member is seen as invasive and potentially damaging to the employee.  The alternative is to simply accept all applications for unpaid domestic violence leave at face value, which is the approach that many members have taken” explains ACAPMA Executive Manager for Employment and Training Elisha Radwanowski.

“While it has not come up as a leave that is often used by Members staff, it is an entitlement that is often discussed, in readiness, and almost universally members have instructed line managers to respond to any such requests with something akin to ‘you take all the time you need and you let us know if there is anything we can do to help you through’.  This approach does not seem to be unique to the fuel industry” outlines Elisha.

It is not clear when the business should allow leave.  The entitlement is multifactorial and unlike personal and carers or compassionate leave, there is not a standard evidence regime (like medical certificates).  In the instances where an employee does have medical certificates, the details therein being communicated to the business, may in and of themselves further traumatise the employee.  Absent a clear and accepted evidence regime the business is required to ask probing questions, and demand potentially distressing evidence, or, as is more common, simply award the leave without evidence.

“While the current DV leave structure is for unpaid leave this approach of ‘no questions asked’ comes at a real cost to the business of staff replacement, usually in the form of overtime, but this has not been something that any Member has raised as a serious concern, as usage has been limited and as noted, businesses are much more concerned with the safety of the employee.  However, as with all entitlements there is the potential for misuse, a potential that dramatically increases once the leave is paid, as does the real cost on businesses” continued Elisha.

There is a real question as to whether businesses are the best place to be assessing if a person is a victim of domestic violence and whether the business should be bearing the cost, or if domestic violence professionals like doctors and social workers should be determining if there is an entitlement, and if governments should be providing the financial support to victims.

Consultation on proposal

As part of the consultation on the proposed changes the Fair Work Commission is approaching some businesses directly, asking them to fill in a 10 minute survey that seeks to understand;

  1. The organisation – size, number of employees, Awards used etc
  2. Use of current DV leave – general information on if the business has had a DV leave request, if it was approved, what evidence was requested
  3. Additional paid DV leave that is offered by the business (if it is offered)
  4. Formal DV policies and support services offered by the business
  5. Comments on the proposed changes

This request will come to businesses via email and can be answered anonymously.

ACAPMA is also continuing its consultation with Members and encourages Members to share their experiences with domestic violence leave and their thoughts on the changes by 15/11/2021  to employment@acapma.com.au to be folded into the final ACAPMA submission to the FWC.

Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/  for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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