Accounts of FDV are regularly featured in current affairs, and it has been reported by Monash University that since the first recorded cases of Covid-19 in Australia, Google searches relating to FDV increased by 75 per cent and the number of first-time family violence reports increased by 42 per cent.
It is now imperative that employers understand the challenges that an employee’s exposure to FDV can present for them as an individual, as well as to the workforce, and to understand how to support employees experiencing FDV while also managing legal risk from an employment law perspective.
What is family and domestic violence?
The Family Violence Protection Act 2008 outlines that family violence is behaviour by a person towards a family member that is physically, sexually, emotionally, psychologically, or economically abusive, is threatening, coercive or in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person.
Challenges of family and domestic violence
Employees cannot be expected to leave the impacts of FDV “at the door” when they arrive at work. FDV can impact on an employee’s self-esteem, confidence, work productivity and performance, safety, and interpersonal relationships within the workplace. It can also lead to the development of mental health conditions.
FDV can lead to increased staff turnover, high rates of absenteeism, loss of productivity, emotional impacts on other team members, decreased workplace morale and safety risks.
It is pivotal that employers look for ways to support employees experiencing FDV.
Family and domestic violence under the Fair Work Act 2009 and modern awards
The Government and other bodies have recognised the impact FDV has on workplaces and have introduced measures to assist in supporting those exposed to FDV.
Since 1 August 2018, all modern awards now include an entitlement to five days of unpaid family and domestic violence leave for employees who are victims of FDV and may need time to do something to deal with or alleviate the effects of family violence but are unable to do so while attending their regular work schedules. This leave is credited to employees in full at the start of each 12-month period of the employee’s employment but does not accumulate from year to year. This entitlement is afforded to all employees including casuals, and employees are not required to have taken any sort of paid leave before taking unpaid FDV leave. The Fair Work Commission has indicated that it will in June 2021 re-examine the issue of domestic violence to assess the need and effectiveness of a paid leave scheme.
Following the introduction of FDV in modern awards, the National Employment Standards (NES) contained in the Fair Work Act 2009 were also updated in December 2018 to introduce an entitlement for all employees (and not just those covered by a modern award) to five days’ unpaid FDV leave each year, mirroring the FDV provisions contained in modern awards.
In introducing FDV leave into the NES, the government emphasised that the purpose of FDV leave is to provide employees who are experiencing FDV with support and to assist them in maintaining workforce participation – where in other circumstances employees may have felt they had no other option but to resign their employment.
As part of the NES, employers must take steps to ensure information concerning any notice or evidence of an employee taking FDV leave is treated confidentially, as far as reasonably practicable to do so, save that employers can disclose information if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.
Also as part of the NES, a permanent employee with 12 months’ continuous service or long-term casual employee with a reasonable expectation of continuing employment on a regular and systematic basis may request a flexible working arrangement where the employee is experiencing violence from a member of their family or the employee provides care or support to a member of their immediate family, or member of their household, who requires care or support because the member is experiencing violence from the member’s family. An employer may only refuse such requests on reasonable business grounds.
Many enterprise agreements or employer policies provide for additional FDV leave. It is of course open to employers to provide more generous FDV leave entitlements which exceed the minimum standards under modern awards and the NES.
More ways to support employees exposed to FDV
It can be difficult for an employer to address issues that have arisen primarily in an employee’s home, particularly given the sensitive nature and stigma of FDV. However, the law requires employers proactively identify workplace hazards and eliminate risks as far as reasonably practicable. This includes a requirement for employers to monitor the health and safety of employees and take steps as far as reasonably practicable to eliminate or mitigate the risks of FDV and its effects in respect to their employees.
There are a number of measures, workplace health and safety related or otherwise, that can be put in place to help employees who have suffered or are suffering from FDV, including:
- FDV leave policies
Employers should consider implementing a FDV leave policy, and ensure their staff are familiar with the policy. Ideally a leave policy should include information surrounding confidentiality and privacy obligations of FDV disclosures, workplace safety planning, referral processes to FDV support services, information about key personnel and appropriate training to these personnel, consideration of flexible work arrangements, paid (if offered) and unpaid FDV leave options. These should be well communicated throughout the workforce so that employees are aware of the policy and where to seek support.
- Paid leave
Many employers currently allow employees who are exposed to FDV or who are supporting someone experiencing FDV to use paid personal leave that may not strictly come under sick or carer’s leave provisions. On top of this, some employers offer paid FDV leave to permanent employees.
- FDV contact officers and training
It is important to appoint FDV contact officers who can manage disclosures relating to FDV, particularly given its challenging and sensitive nature and the vulnerability of impacted employees. FDV contact officers should be trained in how to manage disclosures and provide support and referrals to external services for employees who may be experiencing FDV issues.
- Flexible work arrangements
Bear in mind that as outlined above, employees with 12 months’ continuous service can make a request for flexible working arrangements (including flexibility around hours or work locations) if they are experiencing FDV. Employers are encouraged to develop and implement flexible work policies and arrangements with staff.
- Resources available within and outside of the workplace
As well as appointing FDV contact officers, employers should consider having in place employee assistance programs and directing impacted employees to 1800RESPECT, Lifeline and other local support services.
It is important that employers create a workplace culture where employees feel safe to talk to their manager or contact officers about FDV issues they may be experiencing or have experienced. FDV is a serious workplace issue. Taking some or all of these steps that reflect or exceed the legislative minimum is a great start. By taking steps to support and assist people exposed to FDV, hopefully the challenges of FDV to employees and workplaces and its prevalence in Australia can be eliminated.