In late July 2022, the Federal Parliament introduced a Bill to amend the Fair Work Act and the National Employment Standards (NES), to provide for paid family and domestic violence (Bill). If passed, the Bill amends the current entitlement of 5 days of unpaid family and domestic violence leave, to 10 days of paid leave.
In this current political environment, it seems unlikely that the Bill will not pass in its current form or predominantly in its current form. Hence, it is important that employers begin to consider how they will manage this new form of paid leave.
Who can access the leave, how does it accrue, and when can it be taken?
All employees, full-time, part-time, and casual, have an entitlement to family and domestic violence leave. It can only be taken at a time when the employee is scheduled or rostered to work (so for example, a part-time employee working Wednesday to Friday, cannot take paid family and domestic violence leave on a Monday).
The leave can be taken either over a continuous period of time or at separate periods of time as well as part days as agreed between the employer and employee.
The entitlement to the 10 days of paid leave arises upon the commencement of employment (it does not accrue over time like personal leave). It is not cumulative and doesn’t accrue year after year. There is an entitlement to 10 days in any 12-month period, and if you do not use them within that 12-month period they do not carry over to the next year.
When can family and domestic violence leave be taken?
An employee can access paid family and domestic violence leave if:
- they are experiencing family and domestic violence; and
- they need to do something to deal with the impact of the family and domestic violence; and
- it is impractical for them to do that something outside of their ordinary hours of work.
Some examples given about when someone might “need to do something”; include:
- arranging for the safety for themself or a close relative (including relocation);
- attending urgent court hearings;
- accessing police services; or
- attending counselling or appointments with medical, financial or legal professionals.
The evidence required to satisfy the entitlement to the paid leave is said to be the evidence that would satisfy a reasonable person that the employee is experiencing family and domestic violence, needs to do something to deal with the impact of it, and it is impractical for that thing to be done outside of ordinary work hours.
Examples of evidence include things such as a doctor’s certificate, a notice to appear in court, or an appointment confirmation from a lawyer.
What does it mean to be experiencing family and domestic violence?
Interestingly, the Bill uses the words “experiencing family and domestic violence”. It doesn’t limit the right to family and domestic violence leave to “a person who is subject to family and domestic violence” or “a person who is the victim of family and domestic violence”. Examples given of “experiencing” family and domestic violence include “needing to arrange for a close relative’s safety”. This very much suggests that experiencing is not just being a “victim of” or being “subjected to” family and domestic violence.
Further, when trying to determine Parliament’s intention in any legislation, courts must first regard the plain ordinary meaning of the words in the legislation. The plain or dictionary meaning of “experiencing” is to encounter, to undergo, to feel, to do. It is broader than being subject to or a victim of.
Given this, we are of the view that it is arguable that an alleged perpetrator might be said to “experience” family and domestic violence. Accordingly, an alleged perpetrator may be entitled to paid family and domestic violence leave to attend, for example, counselling, legal or psychiatric/psychological intervention or to attend court as a result of their perpetrating.
Ultimately, we will have to wait until the court or commission hands down some decisions on the new provisions (if they are passed). It might have been clearer if perpetrators were not included in the entitlement to leave, to have used “subject to family and domestic violence” rather than experiencing.
Even if alleged perpetrators are not entitled to the leave, there may be circumstances in which there are cross allegations of domestic and family violence. That is, an alleged victim is also an alleged perpetrator.
What do you need to do?
Family and domestic violence leave is going to require sensitive handling. Accordingly, employers should begin to identify and put into policy form how they will manage family and domestic violence leave. It will have to cover:
- how an employee must notify the employer of the need for the leave and whether, given the need for privacy, there are specific persons to whom such notification should be directed (some employees may be reluctant to tell an immediate supervisor that they need family and domestic violence leave);
- what evidence the business requires; and
- how the business will keep information about taking family and domestic violence leave private and confidential (any special way of keeping evidence or requests for the leave private).
Businesses might consider if they should have nominated persons in the business to manage this leave and what training they may need to be given to sensitively and confidentially manage what will be a difficult notification for many employees to give.
Having a clear policy will overcome the risks of breaches of privacy and will assist employees in coming forward when they need to. It will help ensure that employees are treated fairly and equally in relation to accessing the leave. This will help reduce the potential risk for adverse action or discrimination claims if an employee believes that the business is otherwise unwilling to allow them to access leave or makes it too difficult for them to access the leave.
This will be a sensitive process and will often leave employers feeling like they are walking the tight rope of support versus verification.
If, over the next weeks you contemplate or prepare a policy to manage family and domestic violence leave, as we strongly encourage you to do, if you have any questions or would like some assistance with it, please contact us.
For further information regarding the above, please contact the author or any member of our Employment, Workplace Relations & Safety team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.