What are your legal responsibilities as an employer?
As an employer, you need to be aware that the Fair Work Act provides minimum entitlements for employees.
Employers can provide more than the minimum entitlements under workplace policies, enterprise agreements and informally.
Under the Fair Work Act, employees dealing with the impact of family and domestic violence can:
- take unpaid family and domestic violence leave
- request flexible working arrangements
- take paid or unpaid personal/carer’s leave, in certain circumstances.
Unpaid family and domestic violence leave
Employees (including casual and part-time employees) are entitled to 5 days of unpaid family and domestic violence leave each 12 month period. This leave:
- doesn’t accumulate from year to year if it isn’t used
- is available in full when an employee starts working at a new workplace
- renews in full at the start of each 12 month period of employment
- can be taken as a single continuous period or separate periods of one or more days.
Employers and employees can agree for an employee to take less than one day at a time, or for the employee to take more than 5 days of leave.
What is family and domestic violence?
The Fair Work Act defines family and domestic violence as violent, threatening or other abusive behaviour by an employee’s close relative that seeks to coerce or control the employee and causes them harm or to be fearful.
Who is a close relative?
A close relative is:
- an employee’s:
- spouse or former spouse
- de facto partner or former de facto partner
- an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
When can employees take unpaid family and domestic violence leave?
Employees can take leave when they:
- are experiencing family and domestic violence
- need to do something to deal with the impact of that violence
- it’s impractical to do so outside their ordinary hours of work.
Notice and evidence
If an employee takes family and domestic violence leave, they have to let their employer know as soon as possible. This can happen after the leave has started. Employees also need to tell their employer how long they expect the leave to last. An employer can ask for evidence, which can include:
- documents issued by the police
- documents issued by a court
- family violence support service documents, or
- a statutory declaration.
Employers have to take reasonably practical steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes information about the employee taking family and domestic violence leave, including leave records as well as any evidence provided by the employee.
Employers aren’t prevented from disclosing information if it’s:
- required by law, or
- necessary to protect the life, health or safety of the employee or another person.
Employers need to be aware that any information about an employee’s experience of family and domestic violence is sensitive. If information is mishandled, it could have adverse consequences for their employee including serious injury or harm. It is recommended that employers work with their employee to discuss and agree on how this information will be handled.
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Source: Fair Work Ombudsman