Family and Domestic Violence Support

How is family and domestic violence support treated under the Public Sector Interim Workplace Arrangements 2022 (the Arrangements)?

The Australian Government is committed to supporting employees who are affected by family and domestic violence.

In addition to providing paid leave entitlements, as required under the recent change to the National Employment Standards effective from 1 February 2023, the Arrangements encourage 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 family or domestic violence?

Family and domestic violence can affect employees in a range of circumstances. For example, it can include intimate partner violence directed towards a partner or former partner of any gender, violence in a parent-child relationship, and elder abuse.

Support for employees affected by family and domestic violence takes many forms. Leave is one of many ways agencies can support affected employees, and may not always be the most appropriate form of support depending on an individual employee’s situation and needs.

It is critical that each employee dealing with family and domestic violence is supported based on their individual circumstances, and that the protection of their privacy remains paramount. There are several ways agencies can provide appropriate assistance to their employees, including:

• access to paid miscellaneous leave in excess of statutory requirements;
• personal/carer’s leave, as required and at the employee’s request;
• flexible working arrangements;
• access to counselling and support services;
• personal safety assistance at workplaces; and
• one-on-one advice through designated contact officers.

Anyone can be affected by family and domestic violence, but care should also be taken to understand how family and domestic violence disproportionately affects people from Culturally and Linguistically Diverse (CALD), Aboriginal and Torres Strait Islander and LGBTIQ+ communities, or people living with a disability.

While in some instances referral to Employee Assistant Program (EAP) services for employees affected by family and domestic violence may be appropriate, it is recommended that employees are referred to dedicated family and domestic violence services, such as 1800RESPECT, in the first instance. This is recommended due to the specialised training provided to domestic violence support staff.

Agencies are encouraged to engage with their EAP providers to confirm the services available.

How can existing entitlements be used to provide maximum support under the Arrangements?

Agencies should assess the needs of employees affected by family and domestic violence on a case by case basis, and engage with individual employees about what assistance they may need, including access to leave. Leave provisions and flexible working arrangements allow agencies to help employees in ways that are responsive to individual circumstances.

From 1 February 2023, all Australian employees covered by the Fair Work Act 2009 are eligible for 10 days’ paid family and domestic violence leave under the National Employment Standards each year. This leave does not accrue, and is available in full to casual, part time and full time employees. Commonwealth employees are covered by the Fair Work Act 2009.

Most agency workplace arrangements (including enterprise agreements) provide uncapped paid and/or unpaid miscellaneous leave (alternatively known as special or discretionary leave), which can be used for this purpose.

In keeping with the intention of Fair Work Act 2009 amendments, employees should be provided with at least 10 days of paid miscellaneous leave prior to being required to access personal/carer’s leave or any other form of leave. To reiterate, while the changes to the National Employment Standards are operational from 1 February 2023, access to paid leave can and should be provided now, as necessary. Further, from the perspective of being a model employer, unless the employee specifically elects to access personal/carer’s (or any other form of leave) paid miscellaneous leave should be provided, at agency discretion.

Where existing miscellaneous leave provisions do not apply to casual employees (due to the construct of the entitlement under the relevant workplace arrangement), agencies are encouraged to put in place alternative measures that facilitate access to paid leave for family and domestic violence leave purposes for casual employees. This could include determinations being made under section 24(1) of the Public Service Act 1999 or other agency enabling legislation.

Agencies must ensure that, from the commencement of the amendments on 1 February 2023, the correct amount is paid when an employee is accessing paid leave for family and domestic violence purposes as this leave is treated differently to the entitlement to annual or personal/carer’s leave.

From 1 February 2023, paid leave for family and domestic violence purposes is to be paid at the full rate of pay for the hours worked, had the employee not taken the leave. As such, incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other separately identifiable amounts must be included. ‘Full rate of pay’ is defined in Section 18 of the Fair Work Act 2009.

Existing support may also include access to personal/carer’s leave entitlements where the employee elects to access that form of leave (and it meets the requirements for personal/carer’s leave use). In most agencies this entitlement is greater than the 10 day minimum paid personal/carer’s leave provided under the National Employment Standards.

Agencies may also provide affected employees with access to flexible working arrangements, employee assistance programs and other supports.

What about an employee’s privacy?

Protecting the privacy of individual employees experiencing family or domestic violence is paramount. 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.

From 1 February 2023, requirements to ensure the protection of an employee’s privacy will come into effect under the Fair Work Act 2009. This includes ensuring payslips (and other methods of recording information on leave taken for family and domestic violence purposes) cannot be used to identify such leave – further information is available in the APSC Circular 2022/12.

Agencies are encouraged to put measures in place that limit or control administration and delegations for the approval of leave for family and domestic violence purposes as a measure to reduce the likelihood of sensitive, personal information being released.

Engaging with managers

Agencies are strongly encouraged to ensure all managers undertake training on recognising and supporting employees affected by family and domestic violence. Equipping managers with adequate resources, tools and ensuring managers have a comprehensive and up to date understanding of what constitutes family and domestic violence, cycles of abuse and how the workplace can best provide support, has the potential to reduce harm and save lives.

For information on training providers, agencies can find information through 1800RESPECT on their website.

Supporting employees affected by family and domestic violence may be emotionally challenging. Employees affected by family and domestic violence should be able to access 1800RESPECT and other support services during paid work time. Likewise, managers should be reminded they are able to access employee assistance programs for support.

APS Family and Domestic Violence Policy Framework template

This is a template policy that agencies can use to develop their own policies on family and domestic violence. Agencies should tailor this policy to suit their operations. Generic references to the agency, human resources and employee assistance programs should be amended to reflect the arrangements of individual agencies. Agencies should ensure that the support and leave outlined in their family and domestic violence policies are consistent with other human resources policies, their enterprise agreements and relevant legislation.