FWC decides on domestic violence leave – what HR needs to know - HRM

By Alan J. McDonald

The Fair Work Commission has decided that domestic violence leave will be covered by modern awards.

As part of its four-yearly review of modern awards, The Fair Work Commission has ruled on domestic violence leave.

It has decided that workers covered by the awards will now be able to access five days of unpaid domestic violence leave a year. It has denied the ACTU’s push for it to be available on an uncapped, per occasion basis, but the amount of leave is still higher than the two or three days per annum suggested by employer parties.

“The circumstances faced by employees who experience family and domestic violence require a special response” and “family and domestic violence is a community issue and requires a community response”, the FWC said in its summary.

While the drafting of a model term that would give effect to the decision is yet to be finalised, it’s not too soon for HR professionals to begin preparing their organisations.

What HR needs to do

Trent Hancock, principal lawyer for McDonald Murholme, advises that “HR should prepare for the change by reviewing and updating existing policies and procedures to incorporate the new entitlement.” He also recommends employees be given information as to how the entitlement will interact with their existing leave.

AHRI has investigated how Australian HR professionals feel about domestic violence leave. One finding was that less than 20 per cent of organisations provide special training for dealing with employees who suffer from domestic violence. Given the recent decision, this might also need to change.

Evidence of family and domestic violence

Being entitled to leave is one thing, accessing it is another. Specifically, employees who want to seek domestic violence leave can be asked to provide evidence.

It’s not yet known what exactly that would entail, but if it’s in line with what the Fair Work Act currently requires for paid personal leave it would be evidence that “would satisfy a reasonable person”.

According to Hancock, the ACTU’s proposal is sensible and consistent with the Act. The ACTU suggested that such evidence may include “a document issued by the police service, a court, a doctor (including a medical certificate), district nurse, maternal and child health care nurse, a family violence support service, a lawyer or a statutory declaration”.

The ACTU also proposed that any sensitive information be kept confidential, except where disclosure is required by law to prevent a serious threat to the life, health and safety of any individual, says Hancock.

Limits of the law

Only employees who are covered by a modern award will have access to the new entitlement. “However, the Federal government has already flagged amendments to the Fair Work Act 2009 to ensure that the entitlement can be accessed by all national system employees,” says Hancock.

“Employees should also be aware that the entitlement will be available to both permanent and casual employees alike and will be available in full at the commencement of each 12 month period. However it will not accumulate from year to year.”

Last but not least, explains Hancock, employers should also be mindful that once it’s introduced, an employee is protected from any form of adverse action as a result of having exercised the right to take unpaid domestic violence leave.

Further legislative changes could be seen if the government changes. Currently, the Federal Labor Party has flagged that, should they gain power, they will aim to “provide for five days domestic and family violence leave in the National Employment Standards”. NSW Labor committed to a policy of 10 days of paid leave last December.

Reference: FWC decides on domestic violence leave – what HR needs to know, HR Monthly, Tuesday 27th March 2018.