Family and Domestic Violence Leave

In Australia, all employees are entitled to take leave if they are experiencing family violence. Family violence leave ensures that employees who are victims of abuse do not lose their employment due to their need to take time off as a result of their living situation, to access police services, to seek medical care, or to attend court events. If a person needs to undertake these activities during work hours, they can access unpaid leave. This page deals with family and domestic violence leave in Australia.

Legislation

Subdivision CA of the Fair Work Act 2009 deals with family and domestic violence leave.

What is family violence?

Family violence is any conduct by a close relative that is violent, coercive, threatening, or abusive. It may involve physical violence or sexual violence, or it may be limited to emotional, psychological, or economic abuse or to any behaviour that causes the person to be fearful.

Women, men, and children can be victims of family violence.

Family violence can be perpetrated by any close relative including a partner, former partner, parent, child, sibling, or other member of a person’s household.

Paid family and domestic violence leave

Under section 106A of the Fair Work Act 2009, an employee is entitled to 10 days of paid family and domestic violence leave in a 12 month period. This leaves available to both full-time, part-time, and casual employees, but it does not accumulate from year to year. This leave may be taken as one continuous period of lead or as separate periods of one or more days of leave.

An employee can take family and domestic violence leave if they are experiencing family and domestic violence and need to do something to deal with its impact that it is impractical for them to do outside of their hours of work. Examples include accessing police services, attending court, attending medical appointments or counselling, or seeing a lawyer.

An employee is to be paid for the period of their leave at the usual rate of pay.

Confidentiality

When an employee takes family and domestic violence leave, the employer must treat the matter confidentially insofar as it is practical to do so. An employer must not use the information that has been disclosed for any purpose other than in relation to the employee’s entitlement to leave, except where it is required to do so by law or to protect the safety of the person.

Leave for victims of crime

If an employee is entitled to leave for victims of crime under state or territory Law, that entitlement does not affect their entitlement to domestic or family violence leave under the Fair Work Act 2009. In this situation, the employee will be entitled to take both leave for victims of crime and domestic or family violence leave.

Employer can ask for evidence

An employer may request that a person who is seeking domestic or family violence leave provide evidence of the circumstances that give rise to their need for this leave. This may include police reports, court documents, or letters from community support organisations. If no other evidence is available, the employee can provide a statutory declaration.

Protection from discrimination

An employee must not be subjected to any adverse action, because they are experiencing domestic or family violence. Adverse action includes dismissal, demotion, or being treated less favourably than other employees.

A person who believes they have been discriminated against on the basis of domestic or family violence may make a complaint of discrimination to the Fair Work Ombudsman.

Workplace policies

Some workplaces may have a policy of allowing employees to take more domestic and family violence leave than what they are entitled to under the legislation. However, workplace policies must not stipulate that employees are entitled to fewer than 10 days of domestic and family violence leave.

Changes to the law

In the past, eligible employees could access five days of unpaid domestic and family violence leave per year. Since the introduction of paid domestic and family violence leave, unpaid leave is no longer available under employment law legislation. Depending on the workplace policies of an individual employer, however, some employees may be able to take unpaid leave in addition to their paid leave entitlements.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.