What You Need to Know About Employer and Employee Rights When Dealing with Family and Domestic Violence Situations
Every four years, the Fair Work Commission (FWC) reviews the modern awards and this time around the FWC has passed a decision to include family and domestic leave (FDL) in all modern awards.
The modern awards will be updated to include the new clause for this leave entitlement from 1 August 2018.
Who is Entitled to the Leave?
All employees who are covered by an industry or occupation award, including casual workers, are entitled to five days unpaid family and domestic violence leave.
Note that there are a few awards that do not entitle the workers to the FDL, such as enterprise awards and public sector awards. There are also a small percentage of workers who are not covered by any award or other agreement.
Employees experiencing family and domestic violence from an immediate family member, such as a spouse, de facto partner, child, parent, grandparent, grandchild or sibling, may use the leave. ‘Immediate family member’ also includes former spouse or de facto partner and relatives of Aboriginal or Torres Strait Islander people under traditional kinship rules.
Employees can also take this leave if they need to deal with the impact of family and domestic violence but are unable to do so in a practical way outside work hours. This may include assisting other immediate family members with safety or other urgent matters, such as legal or police matters.
FDL has not yet been included in the National Employment Standards (NES). There are some amendments that have been flagged for future determination, such as including it in the NES so all workers are entitled to this leave.
How Much Leave is Permitted?
- Five days unpaid leave per year, the 12-month period being from the anniversary of the employee’s start date.
- Unlike annual leave or personal leave, FDL will not accumulate from year to year if unused.
- Note that this type of leave is not counted as service, but does not break continuity of service—similar to other types of unpaid leave. This becomes important when calculating long service leave entitlements.
- The leave is available, in full, to part-time and casual workers.
- The leave may be taken by the hour rather than the day, if agreed by both employer and employee.
- Employers may choose to offer more unpaid leave if required.
Notification and Evidence
The worker is required to give the employer notice of intention to use this leave as soon as practical after the event or situation, and advise the expected amount of leave required.
According to the FWC determination, evidence (if required by the employer) must ‘satisfy a reasonable person that the leave is taken for the purpose specified’. Formal evidence might be, for example, a doctor’s certificate, police report, family violence support service certification or a statutory declaration.
Although some workers may not be entitled to FDL under the relevant award, the employer may choose to adopt a policy that allows workers to access other unpaid leave to cope with this situation.
It is good practice to have workplace policies in place as they may offer some protection for employer rights. The Fair Work Ombudsman oversees the rights of employees, but employers need to put measures in place to look after themselves as they can, while being compliant with relevant laws.
Good and practical policies outline the responsibilities of employees and employers and can make it easier to deal with difficult situations when there are some provisions documented in the relevant policy.
Employees dealing with difficult situations of family and domestic violence is not new, of course; however, this clause in modern awards formalises an entitlement that previously employers may have dealt with informally by allowing unpaid leave as needed.
FDL allows some protection for the employee, in that employees now know they can take five days without any penalty and without jeopardising their jobs. The employee may not suffer any discrimination or adverse action as a result of taking this leave. Employers must, as always, take care to dismiss employees correctly to avoid possible unfair dismissal claims down the track.
Privacy and security become really important for this issue. Are your payroll records secure? Perhaps the employee trusts the employer enough to discuss the situation, but what if records are inadvertently (or deliberately) accessed by other staff? Remember that business owners are subject to the Privacy Act 1988.
It also may offer some protection for the employer, as they do not have to offer more than five days unpaid leave per year—although most employers will want to show compassion and care for a worker in this situation.
Confidentiality is a big issue with any workers wanting to access FDL. Employers must take all reasonable and practical care to ensure that the worker’s situation is not made public knowledge unless this is with the consent of the employee or required by law. It is a sensitive issue and employers need to be mindful of how difficult it may be for an employee to discuss the reasons for taking this type of leave.
Check Your Employee Leave Entitlements in Xero
If you have an employee who takes this new leave entitlement, let us know before you process the relevant pay run and we will update your payroll settings to correctly track the leave taken.
Alternatively, talk to us now if you would like us to give your payroll settings a health check and include FDL. We can also check that all your other leave entitlements have been set up correctly and advise on security and privacy in relation to keeping your employee records safe and secure.