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Understanding domestic violence leave


Aged care organisations should implement workplace guidelines to ensure all staff are aware of new national family violence leave entitlements, writes Charles Watson.

Family and domestic violence is a social issue that will adversely affect your business if it is being experienced by an employee. At an economic level, the cost to Australian businesses as a result of domestic violence has been estimated by business advisory firm KPMG to be over $609 million a year.

Charles Watson

In recent years many Australian businesses have recognised this issue and an employer’s ability to have a positive influence by implementing a range of workplace entitlements to assist affected workers.

A major step forward occurred in March this year when the Fair Work Commission determined that employees covered by the national award system would be granted an entitlement of up to five unpaid days of domestic violence leave each year. The new clause has been interleaved into all national workplace employment awards and became effective on 1 August 2018.

This particular entitlement does not apply to employers and employees who remain under the Western Australian state industrial relations system. Further, it does not apply to most state public sector or local government employers, however many of those entities have already implemented measures to assist workers affected by domestic violence.

Scope of entitlement

This new award clause provides the annual five days of unpaid leave entitlement to all employees experiencing family and domestic violence including part-time and casual employees. The leave is available in the event that an employee needs to do something to deal with the impact of the family and domestic violence and that it is impractical for them to do so outside their ordinary work hours.

The entitlement is available in full at the commencement of each 12-month period and does not accrue from year to year. Further, the time an employee is on family and domestic violence leave does not count as service, but it does not break the continuity of their service.

The scope of what is included in family and domestic violence has been defined as violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and causes them harm or to be fearful. A family member includes:

  • a current or former spouse or de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
  • a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
  • a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Requirements  

The new entitlement has numerous compliance elements an employee must fulfil to be granted the leave. An employee must advise their employer of the need to take family and domestic violence leave as soon as practicable as well as the expected period of the leave. Although practically this may occur after the leave has started.

Further, an employer is permitted to ask an employee to provide evidence that the leave is for family and domestic violence related reasons. Typically, the evidence an employer may require must satisfy the hypothetical reasonable person test. The circumstances of the situation will determine the evidence required but may include a document issued by the police, a court, a family violence counsellor or a statutory declaration.

Employers are required to take steps to ensure any information provided by the employee is treated confidentially as far as it is reasonably practicable to do so. That being said, nothing within the clause impacts or prevents an employer disclosing information provided by the employee if it is necessary to protect the life or safety of an employee, or if disclosure is required by an Australian law.

Steps for employers

Businesses should consider how to best manage this issue if it arises in the workplace. From a risk perspective, employers should ensure no adverse action occurs against an employee as a result of requiring to use family and domestic violence leave. This includes ensuring no harassment, victimisation, shaming or demoting behaviour occurs towards the employee.

A useful first step is putting in place an informative workplace policy that complies with and details the new entitlement along with any related processes. This will provide a clear statement to your workforce that the business recognises the entitlement and has been responsive to the issue.

As usual, a workplace policy needs to be appropriately implemented. Ensure all supervisors and managers clearly understand how this new policy operates and how to respond to employees about the issue. Also ensure that all workers are made aware of the new entitlement and related processes and procedures.

Although award-free employees are not covered by these recent amendments, some businesses may view it to be more equitable and find it administratively easier, to implement a policy that covers all employees.

To assist with implementing a compliant policy in your aged care workplace, we are offering Australian Ageing Agenda readers a free family and domestic violence policy template. Email customercare@workforceguardian.com.au to request a copy.

Charles Watson is general manager of human resources at Workforce Guardian, a human resources and employment relations service for employers.

This article appears in the current September-October edition of Australian Ageing Agenda magazine.



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