How is family and domestic violence leave treated under the Workplace Bargaining Policy 2018 (the Policy)?
The Australian Government is committed to supporting employees who are affected by family and domestic violence. The Policy encourages all agencies to put in place policies and practices that provide maximum support to employees affected by family and domestic violence.
What can agencies do to support employees experiencing domestic or family violence?
It is critical that each employee dealing with the scourge of family and domestic violence is supported based on their individual circumstances, and that the protection of their privacy remains paramount. Leave is an important support mechanism agencies can provide, and there are several other ways agencies can provide appropriate assistance to their employees, including:
- access to paid personal/carer’s leave and miscellaneous leave, as required;
- access to unpaid family and domestic violence leave provided under the National Employment Standards (NES);
- flexible working arrangements
- access to counselling and support services;
- personal safety assistance at workplaces; and
- one-on-one advice through designated contact officers.
How can existing entitlements be used to provide maximum support under the Policy?
Leave provisions and flexible working arrangements allow agencies to help employees in ways that are responsive to individual circumstances. To maintain this flexible and discretionary approach, it is not necessary for agencies to create a new, prescriptive leave type. Agencies can make reference in new enterprise agreements to existing support, including the availability of personal or miscellaneous leave, without creating new entitlements.
Existing support may include access to personal/carer’s leave entitlements. In most agencies this entitlement is greater than the 10 day minimum paid personal/carer’s leave provided under the NES.
Agreements often provide uncapped paid and/or unpaid miscellaneous or discretionary leave, which could be used for this purpose. Agencies may also provide affected employees with access to flexible working arrangements, employee assistance programs and other supports.
From 12 December 2018, all Australian employees covered by the Fair Work Act 2009 are eligible for 5 days unpaid family and domestic violence leave under the NES each year. This leave does not accrue, and is available in full to casual, part time and full time employees. See Circular 2018/3 for further information.
Note: Although Commonwealth employees are eligible for this leave, most Commonwealth enterprise agreements offer more generous forms of leave as described above. The 5 days unpaid leave provided by the NES should not inadvertently become a maximum entitlement for affected employees where more generous entitlements are available. Agencies should consider how to provide the maximum support appropriate for an individual’s circumstances.
What about an employee’s privacy?
Protecting the privacy of individual employees experiencing family or domestic violence is of utmost importance. Agencies should exercise caution where administering leave provided for the purposes of family and domestic violence, and ensure the highly personal circumstances of employees are protected.