How businesses should manage the new family and domestic violence leave entitlements

The introduction of family and domestic violence leave entitlements into modern awards and the Fair Work Act 2009 (Cth) last year was a significant development in Australian workplace relations.

It has prompted employers to consider how well their workplaces are equipped to deal with such situations.

What is the entitlement?

In summary, employees are entitled to a minimum of five days of unpaid leave to deal with family and domestic violence matters. It may be taken by an employee if they need to deal with the impact of family and domestic violence in circumstances where it is impractical for the employee to do so outside of their ordinary hours of work.

The leave may be accessed in single days, in one period or, by agreement, for a period of less than a day. It is available in full and immediately every 12 months of service — it does not accrue throughout the year and does not accrue from year to year.

The provisions in the modern awards and the Fair Work Act provide examples of reasons why an employee may seek access to such leave, including attending urgent court hearings or making arrangements for their safety or the safety of a family member.

Implications for employers

In order for an employee to access this entitlement, there are certain notice and evidence requirements that must be satisfied. This inevitably leads to the disclosure of confidential and highly sensitive personal information about an employee and, in recognition of this, employers are obligated to take steps “as far as it is reasonably practicable” to ensure the notice and evidence given is treated in a confidential manner.

However, employers also have the delicate task of balancing these obligations with protecting the health and safety of all other employees in the workplace. Acknowledging this difficult position, the relevant provisions do not prevent employers from disclosing such information if the disclosure is required by law, or is necessary to protect the life, health or safety of the employee or others (including fellow employees).

Practically speaking, employers will likely be required to disclose these types of situations to other employees (at least at a very high level or for administrative purposes), for example, to payroll staff who are required to maintain records of employee leave entitlements.

Best practice for employers

It is important that employers take steps to manage employee expectations in these sensitive circumstances. Employers should take the following steps.

1. Advise employees and managers, by way of training and a workplace policy, of the process for requesting and accessing such leave, as well as how issues of confidentiality will be balanced with safety obligations to all employees.
2. As far as reasonably practicable, consult with affected employees about the best strategies for maintaining confidentiality for their particular circumstances (noting this may not be the same for each affected employee).
3. With care and clarity, explain to the affected employee why certain other managers or employees need to be informed of the situation.
4. Arrange for training and support to be provided to managers (and other employees who may find themselves privy to an affected employee’s circumstances, such as payroll) so that they are equipped to handle requests for this type of leave on both a practical and emotional level. There are also online resources being made available by independent organisations which may assist employees in this regard.

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