Domestic Violence is a stain on all communities. It is simply unacceptable. There is no question or argument that greater efforts are needed to ensure that all Australians are safe in their own homes and free from the physical and mental abuse that can (and does) destroy lives. [Last] week, the Government put forward a Bill to provide for 10 days paid Family and Domestic Violence Leave for all workers. This Bill is not yet law, and is not yet in place, but now is the time for businesses to understand the current situation for Family and Domestic Violence Leave and the business system modifications that will be required to accommodate the changes that the Bill seeks to introduce in February 2023. The question is, what has changed, what is changing and what will the impact be on fuel wholesale, retail and admin staff and the businesses that employ them.
If the question is; has leave entitlements changed overnight? Then the short and clear answer is; no. There has been no change to the Awards or the Fair Work Act, which are the instruments that employee entitlements are enumerated in.
The reason for the coverage is that the Government has introduced an Amendment Bill into Parliament that will amend the Fair Work Act, specifically the National Employment Standards to provide all workers with 10 days paid Family and Domestic Violence Leave (FDVL) from 1 February 2023. Given the majority held by the Government it is expected this Bill will become law.
Currently, family and domestic violence is defined by the Fair Work Act as; “Violent, threatening or other abusive behaviour by a close relative of the employee that seeks to coerce or control the employee and causes the employee harm or to be fearful.”
In understanding this definition, it is important to note that; Close relative is defined as a member of employee’s immediate family or relative by Aboriginal or Torres Strait Islander kinship rules. Where Immediate Family is defined as; a spouse, de-facto partner, child, parent, grandparent, grandchild, sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de-facto partner of the employee.
The current FDVL entitlement operates as follows;
Each employee is entitled to five days of unpaid family and domestic violence leave in a 12-month period,
- The entitlement is available from day 1 of employment,
- The entitlement does not accumulate from year to year,
- The entitlement is available to casual and permanent staff,
- The leave is available if all of the following conditions are met; the employee is experiencing family and domestic violence AND the employee needs to do something to deal with that AND it is impractical for the employee to do that something outside of the employee’s usual work hours. So, if the employee is suffering from domestic violence and has to attend court (or move house, or consult with a therapist/doctor etc) and this cannot practically be done when the employee is not usually at work, then the employee is entitled to take unpaid domestic violence leave,
- Confidentiality must be maintained by the business.
Applying for FDVL involves a process of notice and evidence that the Fair Work Act also regulates;
- The employee must provide notice of the leave that is being taken, that it is going to be family and domestic violence leave that is taken, the duration of the leave and must provide any evidence that the business requests to verify that the leave being taken is appropriate,
- Evidence that a business can request and must accept is subject to the reasonable person test – so if the evidence requested or provided would satisfy a reasonable person that the employee was entitled to take the leave then it should be accepted.
ACAPMA has been engaged in the ongoing processes at the Commission regarding FDVL (see; https://acapmag.com.au/2021/10/your-thoughts-domestic-violence-paid-leave-for-all-staff/) and engagement with members have noted that; “While it has not come up as a leave that is often used by Members staff, it is an entitlement that is often discussed, in readiness, and almost universally members have instructed line managers to respond to any such requests with something akin to ‘you take all the time you need and you let us know if there is anything we can do to help you through’. This approach does not seem to be unique to the fuel industry”, outlines ACAPMA’s Elisha Radwanowski.
“While the current Family and Domestic Violence Leave structure is currently for unpaid leave this approach of ‘no questions asked’ comes at a real cost to the business of staff replacement, usually in the form of overtime, but this has not been something that any Member has raised as a serious concern, as usage has been limited and as noted, businesses are much more concerned with the safety of the employee. However, as with all entitlements there is the potential for misuse, a potential that dramatically increases once the leave is paid, as does the real cost on businesses”, continued Elisha.
The changes that the Bill proposes not only that all workers, permanent and casual, will be entitled to 10 days paid Family and Domestic Violence leave but also that it will be paid differently than traditional sick leave.
“Personal and carers leave, what is colloquially known as sick leave, is typically paid at Base Rate. This Bill outlines that the Family and Domestic Violence Leave will be paid at the higher ‘rate the employee would have made had they been working’. Practically this means that shift, penalty and casual loadings for the day that the employee takes as FDV Leave will need to be applied”, explains Elisha.
The increased rate is one layer of complexity with this Bill, but it is far from the only area causing questions from businesses.
“ACAPMA is fielding questions about the Bill from members now about how this applies to casuals. While it is important to understand that this is a first for casual employees there are some simple principles that are applied. All employees can call on all 10 days from their first day of employment, there is no qualifying period, and when it comes to casual employees the rostered shifts are the ones they are entitled to payment for. So, if Jane was rostered to work on Sunday and due to Family and Domestic Violence applies for FDV Leave on the Sunday then she would be paid as if she had worked the Sunday”, continues Elisha.
Get ready now
“Businesses should start turning their minds to the development of detailed policies on Family and Domestic Violence Leave. There is also a need to consider evidence requirements and to train managers in compassionate and harm minimising approaches to seeking such evidence. This is a very delicate area and consideration, planning and training is required to avoid retraumatising or further traumatising venerable workers”, explains Elisha.
“Balance sheet implications must also be considered and Family and Domestic Violence Leave provisioned, at least to some extent, on the Balance Sheet and Cash Flow Projections to ensure businesses are ready and able to respond to this new paid entitlement”, concludes Elisha.
ACAPMA will continue to engage on this process and will update Members with definitive information once it is known.
More information
To dive into the detail, see;
- Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 – https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr6882_first-reps%2F0000%22
If you have questions, or comments that you would like incorporated into any ACAPMA submission please email through to employment@acapma.com.au.
Elisha Radwanowski BCom (HRM&IR)
ACAPMA
Source: https://acapmag.com.au/2022/07/family-and-domestic-violence-leave-changes/.
