Warning: this article discusses family and domestic violence

The Fair Work Commission recently passed a decision which will give 2.6 million working Australians the right to seek 10 days of paid domestic violence leave each year. 

So, what does this mean for businesses and for Australians generally?

This historic decision aims to provide greater flexibility and support in the workplace with respect to domestic violence survivors as well as better resources for maintaining safety in the workplace and at home. Employers will likely need to comply with this decision as precedent. 

In this article, we’ll go through the implications of this decision and how this affects your employer obligations in Australia (this could also depend on the award your employees fall under – read on for more). 

But first, let’s discuss safety in the workplace and how this falls under Australian law. 

Keeping A Safe Workplace: Employers’ Current Obligations

In Australia, employers are currently under a legal obligation to maintain a safe and healthy environment for their employees. 

Of course, this obligation has existed long before the recent Fair Work ruling. 

Employer obligations extend to even the most basic needs, such as using the bathroom during work. For example, in legal proceedings brought by the Retail and Fast Food Workers Union against Tantex Holdings, it was held that Australian workers have the right to drink and toilet breaks. The case saw financial compensation of $1,000 on the basis of failure to provide ‘reasonable access’ to certain facilities. 

This case essentially reinforced the longstanding obligation to provide employees with safety and resources in the workplace. 

The Fair Work Act 2009 covers employee rights across all Australian states. The legislation was introduced after the Fair Work office was established and it subsequently replaced the existing Workplace Relations Act 1996. 

Generally, the Fair Work Act covers the following matters:

Along with adhering to fair work practices, employers are also responsible for keeping their employees safe. Perhaps better known as Work Health and Safety obligations (WHS), these employer obligations are regulated closely by Safe Work Australia. 

What Is Work Health And Safety?

In the most basic sense, these obligations require employers to ensure that workspaces don’t contain any hazards or threats to employees’ health. However, this extends to more than just physical health. 

WHS also protects employees’ mental health at work. With COVID-19 seeing a shift to working from home, this became even more important for workers and employers alike. 

The convenience of working from home comes with the challenges of continuously feeling trapped in the same environment and being isolated. These issues are further exacerbated if an employee’s home environment is not healthy. 

Therefore, keeping your staff safe also includes addressing issues of domestic violence when working from home (we’ll cover this in more detail shortly). 

What Do Employers Need To Do For A Safe Workplace? 

Employers need to take steps to maintain their employees’ safety while they work. 

For example, employers  should have processes to limit potential exposure to COVID-19 in the workplace. This could include requiring certain employees to work from home if they’re feeling unwell, and cleaning the workspace regularly. 

Domestic and family violence is a longstanding issue in Australia. In the recent ruling, the Fair Work Commission noted that “from the age of 15,  1 in 4 women, compared to  1 in 13 men, experienced at least one incident of violence by an intimate partner, and that family and domestic violence costs employers $2 billion annually.”

Employers have an ongoing responsibility to ensure employees’ safety in the workplace, and a big part of this involves -establishing fair access to paid domestic violence leave when needed. 

What Are Current Domestic Violence Leave Entitlements?

Generally speaking, when experiencing domestic violence, employees have the right to:

  • Take family and domestic violence leave 
  • Take personal/carers leave
  • Request flexible working arrangements

Under the current National Employment Standards, workers are entitled to 5 days of unpaid leave for family domestic violence. This leave has been beneficial to those who have had to utilise it – a factor which seems to have contributed to the decision to extend it by another five days. 

If an employee is experiencing domestic violence, it is wise to encourage them to request flexible working arrangements or take leave (note that these entitlements may differ depending on the award that applies to your employees and their specific circumstances). 

However, the rules around leave are changing slightly as a result of the Fair Work Commission’s recent decision. 

What Did Fair Work Decide On Domestic Violence Leave ?

On the 16th of May, 2022, the Fair Work Commission made a historic decision to allow 10 days worth of paid domestic violence leave for 2.6 million Australians. 

This means that it will be incorporated into the National Employment Standards, which apply to part-time and full-time employees (it’s worth checking the award that applies to your employees in case it is different to these standards). 

This is good news for the progression of laws around domestic violence survivors in the workplace. More specifically, it’s likely to set an important precedent for employers to follow. 

This way, employers are under more serious obligations to decrease the risk of being victims of domestic violence by way of internal policies and workplace flexibility. 

When Do These Laws Take Effect?

Fair Work recently finalised the dates that these laws will take effect.

If your business employs more than 15 people, the leave will be available from 1 February 2023. If your business has less than 15 employees, however, then leave will be available from 1 August 2023.

Until that time, employees are eligible for unpaid family and domestic violence leave.

The decision is a good starting point for access to better resources in the workplace, specifically for situations where employees cannot accept unpaid leave for financial reasons. 

Fair Work stated, “Such leave helps individuals to maintain their economic security; to access relevant services, and to safely exit to a life free from violence.” 

What Can I Do As An Employer?

In addition to your WHS obligations, it’s important that you take steps to check in on your employees’ wellbeing and safety at home. 

It’s recommended that you have internal policies for managing employees’ safety. For example, you could have monthly check-ups with individual employees and monitor their financial security, and determine whether it’s under threat. 

You could also offer greater flexibility for their working arrangements, such as allowing them to work from the office when requested. It’s also essential that you actively communicate with employees about their needs when it comes to their safety, and try your best to meet these needs. 

In addition, employers have a legal obligation to keep information about an employees’ domestic violence situation confidential. The purpose of this confidentiality is to keep the employee safe – we’ve written more about maintaining confidentiality in the workplace.  

What If My Employees Work From Home?

The aftermath of COVID-19 saw major changes to working arrangements. With lots of employees now working from home, it could make it a little trickier for employers to monitor the safety of staff. 

Like we mentioned above, mental health is also just as important when it comes to a safe workplace. If your employees work from home, you may want to consider holding regular checkups (for example, through Zoom) and provide your employees with resources if they are in danger. 

If you know an employee or know of someone who may need assistance or help with family and domestic violence, see the following professional resources:

Fair Work has provided some additional information and resources on family and domestic violence. 

Key Takeaways

As an employer, checking in on your employees and ensuring their situation at home is safe is one of your legal obligations. Fair Work’s recent decision is a landmark decision, and while it is just one step, it is now initiating greater reforms around the area of domestic violence leave.

This means you need to take steps to ensure you’re providing employees with the appropriate flexibility and resources to keep safe. 

A great way to do this is to implement policies and internal processes, and train your staff to be aware of these obligations. Incorporating this awareness into your workplace culture can make a big difference. 

Rowan Gardoce
Rowan is the Marketing Coordinator at Sprintlaw. She is studying law and psychology with a background in insurtech and brand experience, and now helps Sprintlaw help small businesses
Sapna Goundan
Sapna has completed a Bachelor of Arts/Laws. Since graduating, she's worked primarily in the field of legal research and writing, and she now writes for Sprintlaw.
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