Family and domestic violence leave: Entitlement, obligations, and upcoming changes

NATIONAL

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. 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

NATIONAL

domestic violence leave; » inform on procedures to access such leave; and » instruct managers and supervisors of procedures to identity and support employees experiencing family and domestic violence. • Engaging in workplace safety planning and protocols for affected employees, such as individualised safety procedures; • Providing support to affected employees through an employee assistance program (EAP), workplace

specific counselling services and/or employee benefits program; • Permitting employees to take additional unpaid absences to deal with the impact of family and domestic violence, should the existing entitlement prove insufficient; and • Providing paid family and domestic violence leave in addition to the existing entitlement, should the existing entitlement prove to be insufficient.

Members are obliged to provide flexible working arrangements for employees that experience violence from a family member or that care for an immediate family or household member that experiences family violence.

Members have work/occupational health and safety obligations which require taking reasonably practicable steps to ensure employees’ safety at work, including employees that experience family and domestic violence.

MGA Employment Lawyers can be contacted on 1800 888 479 Option 1 for queries on family and domestic violence leave.

You’ll love Zymil because Zymil loves you.

For more information please contact your Lactalis Australia Pty Ltd Representative

Lactalis Australia Pty Ltd, 35 Boundary Street, South Brisbane QLD 4101 Phone: 1800 000 257 Fax: 1800 335 188 Email: sales@au.lactalis.com

*As part of a healthy and varied diet, consuming

Zymil instead of regular milk helps ease digestion in those who are sensitive to lactose.