How employers can respectfully navigate the new paid domestic violence leave laws

New paid family and domestic violence leave entitlements require a considerate and consistent business policy to help protect employee wellbeing.

In 2017, the Australian Council of Trade Unions (ACTU) estimated that leaving a violent relationship costs the victim, on average, $18,000.

This figure does not even consider lost income due to missed work – likely a considerable sum, considering leaving a violent relationship takes approximately 141 hours.

When getting out can be so costly and leaving a relationship often heightens the risk and severity of violence, victims need as much support as can be offered.

New amendments to the Fair Work Act were designed as a step towards that goal.

The new entitlements:

• Casual, part-time and full-time employees of small businesses are now entitled to 10 days of paid family and domestic violence (FDV) leave each 12-month period.
• Before, this entitlement was available only to employees of larger businesses. Employees of smaller businesses only had access to five days of unpaid FDV leave.

Warwick Ryan, partner at Hickson Lawyers specialising in employment law, workplace relations and safety, said that under the previous unpaid entitlements, “people [did not] tend to access unpaid leave as much”.

In bringing the entitlements of small-business employees in line with those of larger businesses, Tony Burke, Minister for Employment and Workplace Relations, said that “violence doesn’t discriminate and neither should the law”.

According to Mr Ryan, the question, moving forward, will be less about the legislation and more about the way businesses choose to implement it.

“By placing an obligation on employers, they will likely become more aware and invested in these kinds of issues,” Mr Ryan said.

The following areas will require clear and consistent business policy.

1. Responsibility

In a hybrid work culture, the questions around the duties of the employer to protect the safety of their employees are increasingly complicated.

“It’s an interesting question. By making FDV a workplace issue, there will be some awkward and difficult questions for employers,” Mr Ryan said.

Businesses will have to strike a balance between observing work, health and safety obligations while respecting the boundary between work and home life.

2. Evidence

The right of employers to request evidence in support of an application for FDV leave is mostly discretionary.

According to Mr Ryan, the main question for employers is knowing what to ask for.

Naturally, victims might be hesitant to provide certain kinds of evidence. Mr Ryan said employees can provide redacted documents to hide certain confidential information.

“If people are very intent on rorting this system, then it can be difficult for employers to manage that … but the overall good of the system far outweighs these risks,” said Mr Ryan.

3. Confidentiality

While confidentiality is key in handling instances of FDV among employees, these requirements will raise some complicated questions. For instance, the reforms make it illegal to mention FDV leave on pay slips.

The pay must be marked as “time worked” or another kind of payment for performing work, such as an allowance, bonus, or overtime payment.

According to the Australian government-commissioned Paid Leave for Small Businesses website, to respect confidentiality, employers “should consider sighting evidence provided to support FDV leave, rather than keeping a copy”.

This will require flexibility in business record keeping.

4. Reporting

What are your responsibilities in reporting instances of domestic violence among your employees to the authorities?

Generally, as noted by the Paid Leave website, “it is up to the person experiencing FDV to decide who they tell and what help they get”.

According to the National Domestic Violence Hotline organisation, reporting FDV on another’s behalf is “not always the best response for an individual in an abusive relationship”.

“In an abusive relationship, the victim rarely, if ever, has their wishes or boundaries respected. Honouring boundaries and being respectful of what the victim wants can be a great way to show them what a healthy and supportive relationship looks like.”

While there are certain exceptions, such as when the safety of a child is at risk, employers should do what they can to respect the judgement of their employees.

If you or someone you know is affected by family or domestic violence, you can reach out to the resources below:

Lifeline: https://www.lifeline.org.au/

White Ribbon Australia: https://www.whiteribbon.org.au/

For more advice for small businesses in implementing paid FDV leave, consider the Australian government-sanctioned Family and Domestic Violence Paid Leave for Small Businesses website: https://smallbusiness.10dayspaidfdvleave.com.au/