Is Australia ready for paid domestic violence leave?

In 2016, Queensland became the first jurisdiction to legislate paid domestic and family violence for public sector workers.

The move came amidst increasing community and political pressure for more action to be taken to support victims of domestic violence.

At the December 9 Council of Australian Governments (COAG) meeting, several Labor state premiers pushed for the provision of mandated family violence leave in the National Employment Standards, which set out the minimum entitlements for Australian workers covered by the Fair Work Act

A COAG decision is likely to be made in the first quarter of 2017, so it’s apparent that employers will need to prepare for potential legislative changes.

Law firm Ashurst has identified paid domestic and family violence leave as one of the key employment law issues for 2017.

This follows not just the COAG meeting but also the 2016 Fair Work Commission (FWC) hearing of the Australian Council of Trade Unions claim. This was part of the four year modern award process for an entitlement to 10 days' paid, and two days' unpaid, family and domestic violence leave to be included in the majority of modern awards.

A decision as part of the award review is likely to be handed down in the next few months – presenting observers with the unexpected scenario of guessing who will reach a decision quicker: the FWC or COAG.

Ashurst special counsel, Trent Sebbens, said that regardless of the outcome of that race, it’s an issue that is not going away.

“I think this issue will remain on the agenda, primarily through the four year review of modern awards by the Fair Work Commission, but also due to what has happened in Queensland,” Sebbens said.

The QLD Industrial Relations Act 2016 provides for 10 days of domestic violence leave for those workers covered under that legislation. Those workers are primarily government sector employees.

Sebbens said the QLD and Victorian governments are keen for this issue to be on the agenda of the next COAG meeting.

“There might be a push for it to become a legislated amendment to the National Employment Standards.”

Employer groups have voiced concern about whether the four year review of modern awards is the appropriate vehicle to be pursuing this sort of claim for leave provisions, suggesting instead that it should be legislated – hence the importance of the COAG meeting.

The employer groups have suggested there are already appropriate leave entitlements – such as carers’ leave and compassionate leave – to cover employees struggling with domestic violence.

In terms of practical application of such leave entitlements, Sebbens suggests the QLD provisions might provide the lead for other states to follow.

“It may be that the employee meets the criteria described within the clause being sought for inclusion by the ACTU or within any eventual legislation. It would then be up to the employee to approach their employer and seek the leave. The employer could then ask for reasonable proof of the purpose of the leave," Sebbens said.

"Within the QLD legislation, for example, this might be evidence from the police or from a court; it’s evidence that would satisfy a reasonable person that the leave is being taken for the intended purpose, which is quite similar to the proof required to take personal carers’ leave or compassionate leave.”