The Senate Education and Employment Legislation Committee reported September 1, 2022 (Report) in favor of the Fair Work Amendment Bill 2022 (Paid Domestic Violence Leave) ). As such, the bill appears likely to pass and employers should start reviewing their processes now to prepare for the new rights.
As we outlined in our previous article, the bill will introduce 10 days of paid leave for employees who are victims of family and domestic violence (FDV) and who need to do something to deal with the impact of FDV during their working hours (FDV paid leave) .
If the bill passes, paid FDV leave will start accumulating for existing employees from February 1, 2023 (or August 1, 2023 for small businesses). The entitlement will then be reset on each anniversary of the employee’s start date. As such, employers will need to be ready for FDV paid leave requests immediately on February 1, 2023 (or August 1, 2023).
Employees taking leave with pay FDV will be entitled to receive their full rate of pay for the hours they would have worked had they not taken the leave; this includes casuals who will be entitled to payment for the hours they have been registered to work.
Employers will need to have payroll processes in place to ensure the correct amounts are paid for this leave. It will be important for payroll to understand that pay entitlement for FDV Paid Leave is different from annual or personal/caregiver leave entitlement (which is at an employee’s base rate of pay) and is a new concept for casual employees.
Policies and training
Managers and Human Resources employees will need to be aware of the many situations and circumstances that may give rise to the entitlement to paid leave FDV. For example, many of the appointments that someone leaving an EOL situation may require, such as meeting with a lawyer or financial advisor, will normally only be available during business hours. Managers will also need to be aware of and deal with the fact that potential threats from the originator of the FDV can complicate a leave request by forcing the employee to request the leave or request a last-minute change to the leave.
Employers may require the employee to provide evidence that would satisfy a reasonable person that the leave was taken to care for EDV. In order to deal with potential evidentiary requests and requirements, and to assist their managers, employers should have comprehensive policies in place that the manager can rely on. A comprehensive policy will help the manager know when to request evidence and what type of evidence (if any) is reasonable to request. At the same time, the policy should make it clear that flexibility will be needed to deal with each situation; for example, leave may be requested on an emergency basis and the employee may need the opportunity to provide proof after the leave has been taken.
Along with the policy, employers should introduce training to process FDV paid leave requests. This training should provide managers with the tools to have supportive conversations with employees experiencing EOL and enable them to treat the employee with respect and compassion, even in sensitive situations where evidence may need to be sought.
Managers will need to know how to deal with a range of situations, such as:
- If the employee requests that no one else be told, will managers know what to say and how to handle the leave?
- If the employee performed poorly, how will an EOL disclosure affect ongoing evaluations or management?
- What ongoing support should be offered, or what conversations have taken place, after an EOL paid leave request has been made?
Training should also be available for employees other than management and human resources. An employee victimized by FDV may make a disclosure to a co-worker. It may not happen by asking for paid FDV leave, but the bill reflects evidence that the workplace can play an important role in driving cultural change, in part by normalizing conversations about FDV and allowing employees to feel safe making such disclosures.
As noted in the report, confidentiality and privacy are key in the implementation of FDV Paid Leave. Employers will need to consider these issues when deciding how they will record this leave and how it will appear on a payslip. The use of a generic leave tag should be considered, so that the paid FDV leave is not disclosed to any other employee or, possibly, the originator of the FDV.
One way to protect privacy and confidentiality is to introduce procedures that will keep documentation to a minimum. In many cases where evidence has been sought, it may be appropriate and preferable for the relevant manager to simply have knowledge of the evidence rather than keeping a record in the employee file (or any other file).
Duty of care
If an FDV paid leave request is made by an employee who is working from home, an employer may be notified that their employee is in a violent or threatening environment at work. With the increase in work from home and hybrid work situations, employers will need to be aware of their duty of care to these workers.
Employers should introduce both policies and training that will ensure managers know how to raise the issue of ongoing security with an employee, while respecting their privacy. If possible, it may be appropriate to offer the employee to come to the office rather than continuing to work from home. Managers should also be provided with contact details for appropriate services to which they can refer the employee.