Domestic violence leave in Australia

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by Lauren Wright

In the employment law space, there has been growing debate on whether all Australian employees should have a minimum entitlement to take either paid or unpaid domestic violence leave.  The debate was reinvigorated in March, when, as part of the four-yearly review of modern awards, the Fair Work Commission introduced 5 days’ unpaid domestic violence leave for all award-covered employees.

In the wake of this decision, the Federal Government has stated that it will introduce legislation to extend the same 5 days’ unpaid domestic violence leave to all federal system employees – although this is yet to occur.

In September 2017 by a Western Australian Premier’s Circular, 10 days’ paid domestic violence leave was introduced for public sector employees.[1] However, this entitlement does not extend to Western Australian employees who are not public sector employees (e.g. those employees working for sole traders or partnerships).

The inadequacies of the current legislation

Currently, there is no minimum legislative entitlement to either paid or unpaid domestic violence leave.

The Western Australia Government’s Ministerial Review of the State Industrial Relations System Interim Report has highlighted the gaps in the current leave entitlements afforded to Western Australian employees when it comes to domestic violence leave.

Annual leave is pre-arranged ahead of time and can only be taken at a time agreed upon with the employer, which is often incompatible with the unpredictable nature of domestic violence. Personal leave is limited to illness or injury of the employee, and an employee can only take carer’s leave if an immediate family member or member of the employee’s household is ill, injured or affected by an unexpected emergency. While the flow on effects of domestic violence can result in an entitlement to take personal or carer’s leave, this type of leave is inappropriate for administrative, personal and legal matters.

These shortcomings are equally applicable to the Fair Work Act 2009 (Cth).

The realities of domestic violence

On average, one woman is killed each week, and one man is killed each month, by a current or former partner.[2] As at February, Australian police had already dealt with 440 domestic violence matters in 2018.[3]

Domestic and family violence has far-reaching effects on the health and financial security of an individual. Attempting to locate new, suitable accommodation at short notice, seeking medical and/or legal assistance and attending court proceedings are part of a time-consuming and emotionally-draining process. The difficulty for employees is that this process predominately occurs during business hours. Even if an employee does attend for work, research has shown that domestic violence reduces an employee’s ability to perform tasks in the workplace.[4]

The future

Currently, domestic and family violence leave remains a proposal and not a reality for many Australian employees. The introduction of domestic and family violence leave into modern awards has enlivened debate around the legislative development in this area. In the meantime, employers should consider how they can best support employees who may be experiencing domestic or family violence.

 

[1] Premier’s Circular 2017/07 Family and Domestic Violence – Paid Leave and Workplace Support <https://www.dpc.wa.gov.au/GuidelinesAndPolicies/PremiersCirculars/Pages/2017-07-Family-and-Domestic-Violence-Paid-Leave-and-Workplace-Support.aspx.>

[2] Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence in Australia’ (2018) < https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true>.

[3] Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence in Australia’ (2018) < https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true>.

[4] Suellen Murray and Anastasia Powell, ‘Working it out: Domestic violence issues and the workplace’ (Australian Domestic & Family Violence Clearinghouse, RMIT University, 2008).