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Family and domestic violence leave: Entitlement, obligations, and upcoming changes Family and domestic violence is a national crisis in Australia, which significantly impacts employees’ participation in the workplace and their work performance. Workplaces can play an important role responding to family and domestic violence by supporting affected employees. What is family and domestic violence? As defined in the Fair Work Act 2009 (Cth), family and domestic violence is violent, threatening, or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful. “A close relative of the employee” is a person who is a member of the employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Family and domestic violence leave - entitlement and obligations Currently all employees, irrespective of permanent or casual status, are entitled to five days of unpaid family and domestic violence leave in a 12-month period. This entitlement is available in full at the start of each 12-month period and does not accrue progressively during the 12-month period. The entitlement also does not accumulate from year to year. The leave can be taken in a single continuous five-day period, in separate periods of one or more days, or any other separate periods as agreed between the parties including periods of less than one day. Members and employees may otherwise agree to further days of unpaid leave to assist the employee in dealing with the impact of family and domestic violence. mga.asn.au | February 2022 | Edition 1
An employee is entitled to take family and domestic violence leave if:
• they experience family and domestic violence; and
• they need to do something to deal with the impact of the family and domestic violence, for example to attend court hearings, accessing police services or arranging safe accommodation; and
• it is impractical for them to do that thing outside of their ordinary hours of work. Employees are required to provide a member with notice of taking such leave and members may request evidence that the leave was taken for the purpose specified by the employee. Members also have an obligation to take steps to ensure that information provided by an employee experiencing family and domestic violence remains confidential, unless disclosure is required by law or is necessary to protect the life, health or safety of the employee or another person.
Proposed changes to family and domestic violence leave The existing entitlement to unpaid family and domestic violence leave was introduced in 2018. There are proposals by trade unions and other interested parties to replace the existing unpaid entitlement with ten paid days of leave instead. The Fair Work Commission has called for submissions that oppose any
proposed variations as part of its review of family and domestic violence leave terms in modern awards. Although MGA recognises the widespread harm caused by family and domestic violence and encourages members to play a proactive role in supporting affected employees, MGA’s submission opposes the proposed variation to replace the existing unpaid entitlement with ten paid days of leave, due to the significant cost this would impose on small and medium businesses. However, MGA strongly supports that an employee should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave. MGA has provided its submissions to the Fair Work Commission in February 2022 and will keep members updated.
How can members support employees affected by family and domestic violence? MGA encourages members to consider supporting employees affected by family and domestic violence through the following:
• Implementing a family and domestic violence leave policy to inform employees of their entitlement to take such leave and to communicate the member’s support of affected employees;
• Conducting training or information sessions to:
» increase awareness of the entitlement to take family and
