Domestic violence is an ever-present and serious concern within Australian society. As individuals and parties become more empowered to speak up and gain support, it’s important we’re constantly assessing the way in which employers and our workplaces can play their part in supporting victims.

In this article, we discuss what Family and Domestic Violence Leave (FDVL) is and provide an update on the changes to the entitlement, the ways in which it impacts employers, and how best to actively implement them in order to best support victims within workplaces.

What is Domestic Violence and Family and Domestic Violence Leave?

Under the Fair Work Act 2009 (Cth) (FWA) domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative which seeks to coerce or control the employee and causes them harm or fear. A close relative is defined broadly:

• a spouse, de facto partner (including a former spouse or de facto partner), child, parent, grandparent, grandchild or sibling of the employee; or
• a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules

FDVL exists in order to allow for employees to take time away from work to deal with issues or impacts pertaining to domestic violence against themselves or their direct family in the circumstance that it is not possible to do so outside their scheduled work hours. The entitlement applies to all employees who are covered by an industry or occupation modern award, and can be taken by full-time, part-time and casual employees. It exists additionally to other leave entitlements, is unpaid and does not accumulate from year to year.

So, what’s changed?

You may recall that on 16 May 2022, the Fair Work Commission opted to make changes to the leave package in order to better reflect the needs of victims of domestic violence and assist them better in finding time to deal with the repercussions. The Commission determined that modern awards should be varied to include 10 days of paid FDVL, where previously, all employees (including part-time and casual employees), were entitled to five unpaid days of FDVL each year.  The Commission noted, however, that it would like to hear from the Federal Government as to whether FDVL would be included as part of the National Employment Standards (NES) before it implemented the modern award-based entitlement.

The new ALP Government notified the Commission that it would be introducing legislation to implement paid FDVL.  True to its word, on 28 July 2022 legislation amending the FWA was introduced to Parliament.  The proposed legislation is currently the subject of a Senate Inquiry which will report on 1 September 2022.  The proposed legislation would see all employees be entitled to paid FDVL of 10 days per annum.  The leave will not accrue from year to year, meaning the maximum leave that can be taken in one year is 10 days, but will be available in full at the commencement of each year.  Importantly, the entitlement will not commence until 1 February 2023.

That is great, but how does it affect my business, and what does my business need to do?

While the new legislation is important, much of what employers should be doing in relation to family and domestic violence remains the same.

1. Be supportive.

Establish open lines of communication with employees. Continue to encourage employees to come forward to a manager and speak up about issues such as domestic violence.

2. Be aware of employee leave rights – and make sure they are too!

The FWA gives the rights of victims and families of domestic violence to:

• Currently take five days unpaid family and domestic violence leave (full-time, part-time and casuals)
• From 1 February 2023, take 10 days paid family and domestic violence leave (full-time, part-time and casuals)

3. Be sensitive. Be confidential.

Under the FWA, it is an obligation that all employers take active and meaningful steps to ensure any information disclosed concerning family and domestic violence leave is kept confidential to a reasonable degree (unless required to by law). Make this confidentiality known, as it may comfort the victim in coming forward.

4. Consider requests for flexible working arrangements.

Any victim or individual caring for a victim is entitled to request flexible working arrangements under the FWA. If an employee were to request, it is your responsibility to accept that request within 21 days, unless a refusal is made under reasonable business grounds. It is our recommendation businesses strongly consider their needs alongside the employees needs and accommodate the request if possible.

5. Consider the impact of the businesses policy.

Does your business’s policies instil confidence in victims to come forward? Do your employees understand their rights when it comes to this very difficult issue?

It is the poignant reality that domestic violence cases continue to rise, but it is everyone’s responsibility to assist victims and families to get the help and support they need, including workplaces. The legislative changes are a much needed and necessary step forward, it is the active implementation of support for these victims which remains just as significant.

If this article has raised any concerns for you or someone you know please contact these free support services:

Lifeline – 13 11 14

Beyond Blue – 1300 22 4636

Mensline – 1300 78 99 78

DV line – 1800RESPECT (1800 737 732)

If the information in this article has raised any questions and you need some workplace advice, please contact the team at FCB.