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August Essentials: Family and Domestic Violence Leave Explained

Views: 1101Posted 03-09-2018

This month, our Employment Relations Expert Thorunn Arnadottir stops by to talk us through the new Family and Domestic Violence Leave entitlement.

All Modern Awards in Australia have been changed to include 5 days of unpaid family and domestic violence leave. This is now a compulsory entitlement for all employees covered by modern awards, including casuals.

It’s welcome news for people who need it most, but what does it mean for small business owners?

In this episode we discuss:

  • The new entitlement and how it applies to small business
  • The delicate issue of asking for proof
  • What an employer can do if they suspect an employee is experiencing domestic violence, but won’t talk about it
  • What an employer should do if an employee comes to them requesting domestic violence leave

Leigh: Hello, and welcome to the Better Business Podcast Essentials Update. I’m your host, Leigh Johnston, and every month we’ll do a quick mini episode taking a look at a key issue making news in the world of employment relations and examining what it means for small business owners. This month, our employment relations expert, Thorunn Arnadottir, stops by to talk us through the new Family and Domestic Violence Leave Entitlement and what it means for your business. Before we jump in, just a quick reminder that our September episode of the Better Business Podcast is in the pipeline. John Belchamber from the OrgDev Institute joins us in the studio to talk all things time management. He offers some great strategies and tips to help us manage our time and reclaim our day. It’s shaping up as a great episode, so stay tuned for more details on that one.

But turning to the issue at hand, this month all modern awards in Australia were changed to include five days of unpaid family and domestic violence leave. This is now a compulsory entitlement for all employees covered by modern awards, including casuals. It’s sad that leave entitlements like this even need to exist in the first place, but obviously very welcome news that it’s available for people who need it most. But what exactly does it mean for small business owners? Here to talk us through this new entitlement is our resident expert, Thorunn Arnadottir. Thorunn, welcome back to the show.

Thorunn: Thanks for having me back, Leigh.

Leigh: Firstly, can you give us an overview of the new family and domestic violence leave?

Thorunn: Yeah. So, from the first of August this year all employees, so casual, part-time, and full-time employees, who are covered by an award where the provision is inserted will be entitled to five days of unpaid family and domestic violence leave each year. The leave can be taken to do something that needs to be done to deal with the impact of domestic violence. This is only where the task cannot be performed outside of work hours. So, for example, they might need to attend court hearings. They might need to relocate to safe housing, or they might need to access police or support services.

Leigh: So, what does this mean for small business owners?

Thorunn: For small business owners it’ll be about recognizing that this is now a legislative entitlement and that impacted employees will have the right to take this leave where requested and substantiated. It means that if these situations come up, small business owners need to familiarize themselves with the entitlement and how it works in practice, start thinking or planning about how they might manage staff levels at such short notice, how they might put the message out to employees about how they can seek support from the business if they need to, and also think about what is appropriate and maybe not so appropriate to bring up in discussion with the employees when they do raise these requests.

Leigh: This is a potentially delicate one, but I’m sure it’s a question that’s on the minds of some small business owners. Are they allowed to ask for proof if someone requests domestic violence leave?

Thorunn: Yeah. It is a bit of a delicate matter for small business owners, but the legislation does say that employers can ask for proof. This is to ensure that the leave is being taken legitimately. In approaching this though it doesn’t have to be about sending a message that they’re request is to ensure that they are telling the truth, because that can cause discomfort between both parties. It can simply be a requirement for evidence on the basis of needing to process this as family and domestic violence leave in the payroll system. You know, employers can ask for proof to substantiate the absence, such as police, court, or support service documents or even statutory declarations.

Leigh: Looking at it through another lens, what can an employer do if they suspect an employee is experiencing domestic violence, but won’t talk about it?

Thorunn: It depends what behaviors they’re displaying. As an advisor, I would generally be looking at performance and patterns in their behavior that are out of character. These identifiers give the employer the opportunity to sit down with the employee, and to find out what the reasons are for these changes, and ask them what’s going on. Whether the employee volunteers information about their personal situation is up to them. You know, they might not feel comfortable doing so, and that’s okay.

It’s up to the employer to recognize that if they are unwilling to disclose personal issues, they may not feel safe doing so, and that might be a safety concern from their personal life, or it could even be a safety concern in terms of they feel they might not be supported in the workplace. So, employees should be made aware of a person that they can reach out to if they need to discuss such matters and that these discussions will be treated with sensitivity, so employees feel safer doing so.

Leigh: New Zealand is bringing in a similar provision in 2019, although it will be 10 days of paid leave. Is there any indication that Australia will follow suit and eventually make this a paid leave entitlement?

Thorunn: The original proposal by the Australian Council of Trade Unions was to have 10 days of paid domestic and family violence leave with an additional two days of unpaid leave if the paid leave was exhausted. The Fair Work Commission rejected this proposal. They did recognize that paid leave would be desirable and that there was a potential financial burden on people or families in these situations, because of the disruption to their attendance at work, but on the basis of the evidence put forward they weren’t satisfied that paid level was necessary to overcome this disruption to work.

The research on the average number of days taken in Australia, where employees have this entitlement under their enterprise agreements, didn’t hold a strong argument for 10 days being necessary too. The average number of days taken was closer to the five day period where available. The commission did note that 10 days of paid domestic violence leave is not entirely off the table though. They’ve called it a preliminary view of the matter, and they noted that opportunities would arise in the future for evidence to be put forward to sway their current decision. So, on this basis there is a possibility that we could follow suit in the future, perhaps at the next four yearly review.

Leigh: Obviously leave like this has so much more associated with it, other than just the impact on the business. We’re talking about employee safety and wellbeing. What should an employer do if an employee comes to them requesting domestic violence leave?

Thorunn: I think first and foremost, listen. It can often be a very vulnerable time for an employee who gets to a point where they need to bring it up with the company. Often victims keep these matters to themselves, and some may feel a sense of shame in finding themselves in a situation where it has to be raised and brought into their professional working lives. So, bearing this in mind and being supportive of them is important, but from the employer’s perspective, you know, try and get an understanding from the beginning of what they need to do and how much time they need to get themselves into a safe situation. Keep in mind other leave entitlements as well that might be accessed, such as personal leave or annual leave. That may actually be more suited to the situation.

In terms of safety during working hours, the business may need to consider taking extra steps, such as making sure the employee’s not closing or opening the store on their own, letting them park closer to the building, or making sure that CCTV cameras are switched on at all times. You know, those are just a couple of examples, but if a company also has an EAP program, so an employee assist program, it’s also a good idea to provide this information to the employee to assist them with their head space and wellbeing at work through that psychological professional support.

Leigh: Thorunn, thank you so much for talking us through this delicate issue.

Thorunn: Thanks for having me, Leigh.

Leigh: That’s it for our first Essentials Update. A huge thanks to Thorunn Arnadottir for joining the show and talking us through this potentially tricky new workplace entitlement. A quick reminder that if you are an employer and you need a hand with employment relations advice, call out 24/7 employer advice line on (130)065-1415, or stop by our website, for a stack of free resources and information to help you navigate the world of employment relations. That’s it from us for this Essentials Update. I’m your host, Leigh Johnston. Make sure you tune in for our next episode, where we’ll keep you up to date with all the essential news in the world of employment relations.

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