News and Insights

Family domestic violence (‘FDV’) has long been considered an issue that impacts individuals outside of the working environment. However, the interface between paid employment and FDV exists and it is not always only a criminal justice or social issue but often also an economic and workplace issue.  Legislative changes to workplace laws now reflect this and emphasise the crucial role that employers play in reducing the financial burden upon employees caused by FDV.

The Change

Following the decision of a Full Bench of the Fair Work Commission in respect of the Family and Domestic Violence Leave Review 2021, the Fair Work Act 2009 has been amended to expand the definition of FDV and broaden employee entitlements to take personal leave as a consequence of FDV (FDV leave).

Previously, employees were entitled to take a maximum of 5 unpaid days of FDV leave per year. However, beginning 1 February 2023, full-time, part-time, and casual employees of ‘non-small businesses’ (i.e employers with 15 or more employees) are entitled to 10 days of paid FDV leave each year, with the entitlement extending to employees of ‘small businesses’ as of 1 August 2023.

To be eligible for paid FDV leave, an employee must be experiencing violent, threatening, or other abusive behaviour by certain individuals known to the employee that both seeks to coerce or control them or causes them harm or fear.

To access paid FDV leave, the individual(s) affecting the employee could be:

• a close relative of the employee;
• a member of the employee’s household; or
• a current or former intimate partner of the employee.

The above includes, but is not limited to, FDV committed by an employee’s spouse, de facto partner, child, parent, grandparent, or sibling, as well as perpetrators who form part of their spouse’s or de facto partner’s immediate family.

Notably, the definition of a ‘close relative’ of an employee also includes former spouses or de facto partners, thereby allowing employees to access the leave entitlement for FDV issues relating to FDV arising from previous relationships. This demonstrates recognition of the real and ongoing nature of the impact that FDV has on an employee’s financial stability, even after the fact.

For eligible employees, the leave is available to allow them to deal with the FDV situation, including managing related tasks and duties which may be impracticable to attend to outside of work hours. For example, it can be accessed if an employee needs to relocate homes, make safety arrangements, attend court hearings, attend counselling, medical, financial, or legal appointments, and access police services.

Employers should be aware that they can reasonably request evidence to approve the FDV leave, although they are obligated to keep the information confidential.

Employer Responsibility

Tony Burke MP, Minister for Employment and Workplace Relations stated that “more than 68 per cent of people experiencing FDV are in paid work. However, many can’t leave violent situations without risking joblessness, financial stress, homelessness, and poverty, leaving workers having to choose between their safety and their livelihood.”

On that note, following the amendment to the Fair Work Act, employers are encouraged to take reasonable steps to review, update and adopt systems, policies, and procedures that not only ensure compliance with the new laws but seek to support their employees through periods of FDV and provide them with the time outside of work to deal with its effects without jeopardising their employment.

Please don’t hesitate to speak to your advisor in Wisewould Mahony’s Employment & Workplace Relations area.

If you have any further queries please contact Daniela Sassano 03 9612 7302.