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Family and Domestic Violence Leave

All employees in Australia, including those that are part-time and casual, are entitled to family and domestic violence leave if they experience violence or abuse from a close relative. Family and domestic violence leave ensures that victims of family and domestic violence do not risk losing their employment when they need to take time from work to leave an unsafe living situation, access police services, or attend court hearings. If these activities cannot reasonably be undertaken outside work time, then unpaid leave can be accessed.

Who is entitled to Family and Domestic Violence Leave?

The right to family and domestic violence leave was added to the National Employment Standards (NES) in December 2018 through an amendment to the Fair Work Act 2009. The NES are ten minimum entitlements for all employees in Australia, regardless of whether they are employed under an award, employment contract, or enterprise agreement. As a result of the inclusion of leave for those experiencing family and domestic violence in the NES, all employees are entitled to this leave, and employers cannot contract to exclude this benefit.

What is Family and Domestic Violence?

Family and domestic violence is behaviour that is violent, threatening, or abusive, and committed by a close relative. Family and domestic violence is not restricted to physical contact, as it can include conduct that aims to control or coerce. Women, children and men can all be victims of family and domestic violence. If a close relative’s behaviour causes harm or fear, it is likely to be considered domestic or family violence.

Who is a close relative?

The Fair Work Act 2009 defines a close relative as a partner (including former and de facto partners), child or grandchild, parent or grandparent, or sibling. A close relative also includes the child, parent or sibling of a partner. For Aboriginal and Torres Strait Islanders, the category of close relative encompasses any person related to the individual through kinship rules.

How many days can you access?

Employees are entitled to five days of unpaid family and domestic violence leave each year. Family and domestic violence leave does not accumulate from one year to the next, but it is available in full at the beginning of each twelve-month-period. As a result, new employees who have not yet accumulated a year of service can still access five full days of leave.

Can you take leave more than once in a year?

Employees can take multiple periods of family and domestic violence leave in a year, of one day or more, constituting up to five full days in any twelve-month period.

Employees can access family and domestic violence leave even if they have paid leave entitlements available.

Can an employer refuse?

An employee must give notice to their employer that they intend to take family and domestic violence leave. This may mean that employers need to add this as an option in online leave request systems.

Employers may request that the employee provide evidence of the circumstances giving rise to the need to access family and domestic violence leave. This evidence might include documents from the police or courts, or community support organisations. An employer must be reasonable in evaluating whether the employee requires access to family and domestic violence leave. Where other evidence is not available, an employer should generally accept a statutory declaration.

What confidentiality must an employer provide?

By its nature, an application for leave because of family or domestic violence contains information that is private and sensitive. Employers should take all reasonable steps to ensure that the notice that an employee intends to take this form of leave, and the associated evidence, is kept confidential.

The only circumstances where an employer should disclose this confidential information is where required by law, or in circumstances where the disclosure is considered necessary to protect a person’s health and safety.

What happens if an employer refuses?

It is a breach of the NES to refuse to provide leave to an employee who has experienced family violence and who needs to undertake related activities.

If the employer is a company, it will be held responsible for breaching the NES, but so too will individual employees who are “involved in” the breach, including managers, human resource staff, and accountants. In serious cases, the penalty can be ten times the amount of the maximum penalty that otherwise applies to a contravention of the Act.

Caution should also be exercised when considering the termination of an employee who has experience family and domestic violence. Family and domestic violence can easily impact on employee performance. Dismissal may be viewed as harsh, unjust or unreasonable if an employee’s performance issues relate to violence they are experiencing at home or at the hands of a close relative.

If you or someone you know is experiencing family or domestic violence, there is help available. To access immediate support, you can call:

  • 1800RESPECT (1800 737 732)
  • Lifeline (13 11 14)

If you are experiencing family or domestic violence and require legal advice contact Armstrong Legal’s family lawyers on 1300 038 223 or send us an email.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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