All businesses covered by the Fair Work Act 2009 (Cth) (FW Act) need to be aware of an important change to the National Employment Standards (NES) in December 2018 which allows employees to be absent from work to deal with the impact of family and domestic violence. NEW NES ENTITLEMENT The NES now includes an entitlement for five days of unpaid family and domestic violence leave per year for all employees, whether full time, part time or casual, and irrespective of whether they are covered by an award or enterprise agreement or are award / agreement-free. The annual entitlement becomes available at the start of every 12 month period of employment for each employee, but is not calculated on a proportionate basis for those engaged on a part time or casual basis. Any unused portion of leave does not accumulate from year to year. An employee is entitled to access family and domestic violence leave under the NES if: the employee is experiencing family and domestic violence they need to do something to deal with the impact of the family and domestic violence, and it is impractical for the employee to do what they need to do outside of their ordinary work hours. The FW Act defines ‘family and domestic violence’ as ‘violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.’ In that definition, ‘family member’ means one of the following: the employee’s spouse, de facto partner (including former spouse or de facto partner), child, parent, grandparent, grandchild or sibling a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner (including former spouse or de facto partner) of the employee, or a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules. Circumstances where an employee may need to ‘do something’ to deal with the impact of family and domestic violence include: attending an urgent court hearing accessing police services making arrangements for their safety or the safety of a family member, including relocating. APPLICATIONS FOR LEAVE As with other forms of statutory leave entitlements, an employee’s right to take unpaid family and domestic violence leave is subject to notice and evidence requirements, which mirror the notice requirements for personal / carer’s leave under the FW Act – namely, the employee is required to provide notice as soon as practicable and must advise the employer of the period (or expected period) of the leave. The employee may also need to provide evidence to support taking the leave, if required by the employer (for example, a statutory declaration or a document issued by the police or a court). In addition, the FW Act places an obligation on employers to ensure that this information is treated confidentially, as far as reasonably practicable, unless disclosure is required by law or is necessary to protect a person’s life, health or safety. PRACTICAL SUGGESTIONS FOR EMPLOYERS All employers should now update their leave policies and procedures with appropriate processes to deal with any applications to take family and domestic violence leave. As part of that update, employers need to make sure the procedures which will be followed when processing family and domestic violence leave applications protect the privacy of employees who access this entitlement (and there are requirements imposed in this regard under the FW Act as well as privacy legislation). At a minimum, any workplace procedure dealing with family and domestic violence leave should ideally: appoint a particular person (or small group of people) to oversee leave applications explain the steps which will be taken to ensure the security and confidentiality of the employee’s personal details, including any documentation they provide in support of their application to take leave require a discussion with the employee who is accessing leave as to what information will be relayed to co-workers regarding the employee’s absence confirm the need for all employees to make sure they do not divulge personal information about their co-workers if asked to do so by third parties, and provide information as to who will be notified when an employee is on family and domestic violence leave – this may include, for example, security staff, the employee’s immediate manager and payroll personnel. RIGHT TO REQUEST FLEXIBLE WORK ARRANGEMENTS In addition, employees have the right to request flexible work arrangements for reasons of domestic violence after completing 12 months’ continuous service – and, in the case of a casual employee, where they have an expectation of ongoing employment on a regular and systematic basis. This has been an option available under the FW Act since 2013 and is not changed by the introduction of unpaid family and domestic violence leave. The request must be in writing and can ask for a variety of flexible arrangements, which could include working hours flexibility to allow an employee to attend court appearances, find safe accommodation or organise a change of a child’s school.
