Need to know: family and domestic violence leave

What is unpaid family and domestic violence leave and how does it affect my business?

The Fair Work Act gives all employees an entitlement to up to five days of unpaid family and domestic violence leave each year.

Millions of Australians experience family or domestic violence every year. When a person is living with family and domestic violence, they often experience heightened financial stress, homelessness, isolation and vulnerability.

People who are impacted by domestic violence situations need all the tools available to them to break the cycle of abuse and improve their lives. Employers play a vital role in ensuring employees feel safe and supported if they are impacted by family or domestic violence.

How is family and domestic violence defined?

Family and domestic violence means violent, threatening or other abusive behaviour by an employee’s family member that seeks to coerce or control the employee or causes them harm or fear.

“Family member” means an employee’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild or sibling.

The definition of family member also includes a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

What is the family and domestic violence leave entitlement and how does it accrue?

The entitlement to this type of leave was inserted into the National Employment Standards (NES) on 1 August 2018.

All employees (including part-time and casual employees) are entitled to five days of unpaid family and domestic violence leave in each year of their employment.

Employees are entitled to the full five days from the day that they start work. They don’t have to build it up over time. The entitlement renews every 12 months but doesn’t accumulate from year to year if it isn’t used.

When can employees take family and domestic violence leave?

Employees can take the leave if they need to do something to deal with the impact of family and domestic violence and it is impractical to do so outside their ordinary hours of work.

For example, this could include:

• making arrangements for their safety, or safety of a close relative (including relocation)
• attending court hearings, or
• accessing police services.

The leave does not need to be taken all at once and can be taken as single days. An employer and employee can also agree for an employee to take less than 1 day at a time, or for the employee to take more than 5 days if required.

Employees also have the option of taking paid annual leave or paid personal leave in some circumstances if they comply with notice and evidence requirements.

What notice and evidence must the employee provide to take this form of leave?

If an employee takes family and domestic violence leave, they must let their employer know as soon as possible. This can happen after the leave has started. Employees must also let their employer know how long the leave is expected to be.

An employer can ask the employee for evidence to show that they took the leave to deal with family and domestic violence. If the employee does not provide such evidence, then they may be unable to take the leave.

The evidence needs to convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.

Types of evidence can include:

• documents issued by the police
• documents issued by a court
• family violence support service documents or
• a statutory declaration.

What does an employer need to ensure when supporting an employee who is experiencing family and domestic violence?

Employers must take reasonably practicable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide.

Information about an employee’s experience of family and domestic violence is sensitive. If the information is mishandled, it could have adverse effects on the employee. Employers should work with the employee to discuss and agree on how this information will be handled.

Employees need reassurance that all conversations about family and domestic violence will be held appropriately and will be confidential.

Employers can provide guidance to employees by including this leave entitlement into a policy or employee handbook and by having open conversations about this form of leave and the process for requesting time off to access it.