On 12 December 2018 the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 took effect. The Fair Work Act 2009 now includes an entitlement to unpaid family and domestic violence leave (FDVL) as part of the National Employment Standards (NES). These changes apply to all employees, including part-timers and casuals, following their completion of 12 months of continuous employment.
So what does it mean and how do I apply it?
All employees are now entitled to 5 unpaid days leave to deal with family or domestic violence issues. Family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that seeks to coerce or control the employee and/or causes them harm or fear. For the purposes of this leave condition, a close relative is an employee’s:
- spouse or former spouse
- de facto partner or former de facto partner
- an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
The NES entitlement is the minimum entitlement – employees covered by registered agreements or awards may have different entitlements, but you’ll have to meet the NES requirement as a minimum.
Privacy and discretion are vital at all times, but never more so than in the circumstance of managing family and domestic violence leave for employees. Failing to properly manage and store information can inadvertently exacerbate issues in the workplace, or worse, in the employee’s home or life. The safety and privacy of employees is paramount.
Your Employee policies should include reference to FDVL, what it is and when/how it can be taken.
How do employees let me know that want to take family or domestic violence-related leave?
Employees should be able to request FDVL without providing any more information than is necessary to establish that it’s the correct type of leave for the circumstance, and from any authorised person in the workplace that they trust – for example, their manager or an HR Representative. There is no legislated requirement to provide specific evidence of a family or domestic violence incident, such as an AVO. Where required, requests could be validated by police reports, court documents, a note from a family violence support service, or a statutory declaration.
Notice periods are similar to those of personal leave requests under the NES.
Whilst it’s possible for an employee to apply for FDVL through a usual leave application process – for example, online using a leave booking or planning tool such as a Self Service portal – you’ll need to ensure that record of the leave being applied for and/or taken is only available to authorised staff only. It should not show up on any reporting, screens, lists or other channels that show general leave takings of other types.
Conversely, you shouldn’t just informally agree to FDVL with no record-keeping of the instance, dates and persons involved. Keeping accurate records of employee activity and FDVL is not only required for your business to keep track of who is where and when, it’s also a valuable intervention tool for an HR Representative to trigger a confidential discussion with the employee or their manager, should the need arise.
You will need to keep some kind of private record which is only available to the employee and authorise Payroll/HR staff.
You should also not show FDVL on any reporting, screens or payslips. In the case of payslips, even though this is the employee’s own private document, it could fall into the hands of other close relatives and risk exacerbating their situation.
Consider setting up a separate, anonymous leave type which is labelled in a way that only certain people will understand it’s use or purpose. Report instance of FDVL separately from other takings, and if possible record private notes/attachments about the employee’s circumstances in your Payroll/HR system for future reference, with access to all information restricted to key staff only.
Offering support to employees affected by family and domestic violence
If your business has an Employee Assistance Program (EAP) you should offer information for contacting the program to impacted employees.
If you don’t, don’t worry. There are free, confidential information, counselling and support services for people impacted by domestic and family violence is available at the 1800 RESPECT website, the national sexual assault, domestic and family violence counselling service.