Family and domestic violence leave: what a manager gives and keeps private

The 10 days

The whole 10 days are available at the start of each 12-month period of employment, and unused days do not carry over from year to year. For a casual, or someone employed for a specified period, task or season, the start of employment is taken to be the start of their first employment with that employer. The Fair Work Ombudsman explains it in practice: the full entitlement is there from the start and resets on the work anniversary.

The Act sets out three ways the leave may be taken:

How paid family and domestic violence leave may be taken, quoted from s 106A(4)

Paragraph	The Act’s words
(a)	“a single continuous 10 day period”
(b)	“separate periods of one or more days each”
(c)	“any separate periods to which the employee and the employer agree, including periods of less than one day”

Employer and employee can also agree to more paid or unpaid leave on top of the 10 days. The leave stands alone, separate from annual leave and from paid sick and carer’s leave. It is part of the National Employment Standards, so eligible employees get the 10 days even where an award, agreement, contract or workplace policy gives less. The 5 days of unpaid family and domestic violence leave that applied before paid leave was introduced are no longer available.

When it can be taken

Section 106B(1) sets three conditions, all of which must be met: “(a) the employee is experiencing family and domestic violence; and (b) the employee needs to do something to deal with the impact of the family and domestic violence; and (c) it is impractical for the employee to do that thing outside the employee’s work hours.”

The Act’s note gives examples of what that “something” can be:

“arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.”

Fair Work Act 2009, s 106B, note 1

The Act defines family and domestic violence as “violent, threatening or other abusive behaviour by a close relative of a person, a member of a person’s household, or a current or former intimate partner of a person, that: (a) seeks to coerce or control the person; and (b) causes the person harm or to be fearful.” A close relative is a member of the person’s immediate family, or someone related to them under Aboriginal or Torres Strait Islander kinship rules.

Notice, and the evidence a manager may ask for

The employee gives notice as soon as practicable, which may be after the leave has started, and says how long the leave is expected to last.

An employer may ask for evidence. Under the Act it must be evidence that would satisfy a reasonable person; the Fair Work Ombudsman puts it as evidence that the leave was taken to deal with the impact of the violence and that this wasn’t practical outside work hours. The Ombudsman lists a statutory declaration, police documents, court documents and family violence support service documents as types of evidence, and says evidence can be asked for even for one day off or less. Section 107(4) states the consequence: “An employee is not entitled to take leave under this Division unless the employee complies with this section.” The Ombudsman’s plain version is that an employee who doesn’t provide evidence that was asked for may not be paid for the leave.

What a manager keeps private

Confidentiality is set by section 106C:

“(1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.

(2) An employer must not, other than with the consent of the employee, use such information for a purpose other than satisfying itself in relation to the employee’s entitlement to leave under this Subdivision. In particular, an employer must not use such information to take adverse action against an employee.”

Fair Work Act 2009, s 106C(1) and (2)

Subsection (4) allows the information to be dealt with where an Australian law requires it, or where that is needed to protect anyone’s life, health or safety, the employee’s included. The Ombudsman suggests that employers talk with the employee and agree how the information will be handled.

Pay slips follow the same care: they must not mention paid family and domestic violence leave, though the employer still keeps a record of the balance and the leave taken.

Protection from adverse action

The Ombudsman explains that experiencing family and domestic violence is a “protected attribute”, and an employer may not take adverse action against an employee because of it.

Where this meets the other conversations

Experiencing family and domestic violence, or caring for a family or household member who is, are two of the circumstances in which an employee may ask for flexible working arrangements. State or territory leave for victims of crime is not excluded or limited by this part of the Act.

The Fair Work Ombudsman publishes a small business employer guide on family and domestic violence, which covers a checklist for managing these issues at work, the employer’s legal obligations and a suggested workplace response. Its view is that knowledge, awareness and planning help employers support employees and meet their obligations. A manager working through a performance conversation may meet this leave there too, since the Ombudsman’s list of reasons work can slip includes personal issues such as family stress.