Part I – The Intersection of Criminal, Employment, and Family Law: Family and Domestic Violence (FDV) as an Industrial Issue

Acknowledgement: This paper draws heavily from the Women’s Legal Services Australia submission in response to the Independent Review of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) June 2024; Seymour, K., Marmo, M., Cebulla, A., Ibrahim, N., Esmaeili, H., Richards, J., & Sinopoli, E. 2024, Independent review of the operation of the paid family and domestic violence leave entitlement in the Fair Work Act 2009, Adelaide: Australian Industrial Transformation Institute, Flinders University of South Australia; and the Australian Government Response to the Independent Review of the operation of the paid family and domestic violence leave entitlement in the Fair Work Act 2009 (Cth), February 2025.

Part I – Family and Domestic Violence (FDV) as an Industrial Issue
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) (the 2022 FDVL Act) introduced 10 days of paid family and domestic violence leave to the National Employment Standards (NES).

It is evident from the research that more education and training is required to ensure employers are fully aware of the entitlement and their obligations, as well as how to respond and handle requests in appropriate, sensitive and supportive ways.

In particular, there is a need for education around evidence and confidentiality requirements.

Employees also need information about the entitlement and how to make an application for FDV leave.

This paper examines the history of FDV leave and legislation and provides details of how FDV leave operates.

History of FDV Leave
In 1999, Ludo McFarren and a number of other practitioners set up the Australian Family and Domestic Violence Clearinghouse (the Clearinghouse) to look at family and domestic violence (FDV), the responses to FDV and the gaps in responses. One key gap identified was the lack of workplace responses, and the challenges women in the workforce confronted when seeking to leave a violent relationship, including:

• In order to leave violence, women needed to maintain employment during and after the process, as financial security and independence is key to being able to leave.
• All too often, leaving violence meant losing employment and risk of homelessness, a key driver for women returning to violence.
• The loss of income experienced when people had to take unpaid leave to deal with violence added to their financial disadvantage and made them far less able to leave. Further, given many perpetrators monitor income, any loss or change in wages could also alert the perpetrator to their plans.
• The workplace was often one of the only places women felt safe and respected. For many, due to their movements being closely monitored, often the only time they had any freedom was when the perpetrator thought they were at work. Maintaining a connection with the workplace (and with a safer space) was essential.

Paid FDV leave was identified as a key intervention to assist women to leave violence. In 2008, the Clearinghouse approached union forums to discuss union support for paid FDV leave and pursuing this form of leave through enterprise bargaining.

In 2010, the first paid FDV leave clause was developed by the Clearinghouse in conjunction with the Victorian Trades Hall Council (VTHC) Women’s Committee. Unions in Australia campaigned for a paid FDV leave entitlement for a long time.

In 2010, the Australian Services Union Victoria and Tasmania Branch, supported by VTHC, negotiated the world’s first paid FDV leave clause in an enterprise agreement, covering workers at the Surf Coast Shire council. The Surf Coast Shire Council Enterprise Agreement was approved by the Fair Work Commission (FWC) on 10 December 2010. A number of other enterprise agreements with FDV leave clauses were approved shortly afterwards.

The national We Won’t Wait campaign, calling for Federal Government action on paid FDV leave, was launched in 2014 with the tagline, ‘It takes paid leave to leave. And we won’t wait, because women can’t wait’.

Stakeholders in the FDV sector were also advocating for paid FDV leave before the 2022 FDVL Act was passed. The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (2018 FDVL Act) introduced five days of unpaid FDVL within a 12-month period into the NES.

In December 2014, a statement by the FWC, made after the commencement of the first four-yearly review of modern awards, indicated that the Australian Council of Trade Unions (ACTU) had sought ‘variations to all awards in respect of the issue of family and domestic violence leave and the issue of family friendly work arrangements’.

After determining that the ACTU claims should be dealt with as a separate common issue matter, the FWC called for submissions and held a number of hearings in July 2015. In accepting FDV as a ‘significant community issue’ requiring a workplace response, the Full Bench of the FWC stated:

… we have formed the preliminary view that it is necessary to meet the modern award objectives for provisions to be inserted in modern awards which would allow for a period of unpaid family and domestic violence leave and which would allow employees who experience family and domestic violence access to personal/carer’s leave for the purpose of taking family and domestic violence leave.

As set out in [45], such unpaid leave serves to confirm the significance of family and domestic violence leave as a workplace right and provides an employment protection in circumstances where there is a need to access such leave. (Fair Work Commission, 4 yearly review of modern awards – Family and Domestic Violence Leave Clause (AM2015/1) [2017] FWCFB 3494, 3 July 2017 at [119]).

This preliminary view – that all award-covered employees should have access to unpaid FDV leave – was confirmed by another Full Bench on 26 March 2018 and a draft model term was later released for comment in May 2018.

Shortly after, in December 2018, the 2018 FDVL Act was passed which, similarly to the FWC’s model term, provided 5 days of unpaid leave in the NES to all types of employees, including casuals.

The 2022 FDVL Act changed the existing minimum entitlement of 5 days’ unpaid FDV leave in the NES to a new entitlement of 10 days’ paid leave under the NES.

The paid FDV leave entitlement commenced for non–small business employees on 1 February 2023 and small business employees on 1 August 2023 and extends beyond the national system, to apply to all employees, from 9 September 2024.

The purpose of the amendment, as expressed by the Hon Tony Burke MP, then Minister for Employment and Workplace Relations, was to ensure that no worker ever has to choose between their safety and their income.

Advocacy continued to seek a 10 days’ paid FDV leave entitlement, with the ACTU requesting in 2021 that the FWC reconsider the entitlement in modern awards.

The FWC commenced a review (2021 FDVL Review), reporting it’s provisional view in May 2022 that an entitlement of 10 days’ paid FDV leave be introduced as a model term on the basis that the award minimum safety net was ‘not fair and relevant from the perspective of employees experiencing [family and domestic violence], particularly those who are low paid, because it does not address the necessity for income security’.

In the 2021 FDVL Review, the FWC determined that based on the evidence, a ‘substantial proportion of the Australian workforce’ already had access to paid FDV leave and that it was ‘relatively common for 10 days’ paid leave to be provided’. The FWC found that paid FDV leave was an ‘emerging industrial standard in bargaining and over-award arrangements’. In coming to this view, the FWC considered a range of evidence including an employment survey, commissioned for the review, which demonstrated that one in 5 organisations surveyed already provided employees with paid FDV leave.

In the lead-up to the May 2022 federal election, paid FDV leave was named as an election commitment by the Australian Labor Party. The introduction to Parliament of the 2022 FDVL Bill was one of its first legislative steps as an elected government.

A review in 2024, conducted by Flinders University, found the legislation was “life changing” for those who accessed it and that there was broad stakeholder support from both employers and unions.

A total of 12 findings and five recommendations resulted from the review. The most notable was there should be a focus on increasing awareness and understanding of the leave entitlement through communities and workplaces.

Flinders University found that further work is needed to ensure all employers and employees are aware of the entitlement to family and domestic violence leave.
The review also found that ongoing stigma around family and domestic violence was a barrier to workers accessing the leave.

This paper is designed to assist practitioners in their understanding of FDV and how they can advise clients, both employers providing FDV leave and employees seeking FDV leave.

What is family and domestic violence?
Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of a person, a member of a person’s household, or a current or former intimate partner of a person, that:

a) seeks to coerce or control the person; and
b) causes the person harm or to be fearful.

As defined by the Fair Work Act, a ‘close relative’ is:
a) a person’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, sibling;
b) a person’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling; or
c) another person related to the person according to Aboriginal or Torres Strait Islander kinship rules.

A ‘de facto partner’ of a person means another person who, although not legally married to the first person, lives with the first person in a relationship as a couple on a genuine domestic basis (whether the first person and the other person are of the same sex or different sexes).

Family and domestic violence can include, but is not limited to:
a) physical violence;
b) sexual assault or other sexually abusive behaviour;
c) emotional or psychological abuse;
d) verbal abuse;
e) spiritual or cultural abuse; or
f) economic or financial abuse.

Paid family and domestic violence leave
Paid FDV leave is one of a number supports employers can provide to employees experiencing family and domestic violence. In addition, an employee may request flexible working arrangements or also seek to discuss their safety at work, depending on the extent to which they feel comfortable discussing these things with their employer.

How much leave is available?
All employees (including full-time, part-time and casual employees) are entitled to 10 days of paid FDV leave in a 12-month period under the NES.

This entitlement resets on the employee’s annual work anniversary.

Example: Accessing paid leave for employees
Amy is a full-time employee who started working for a cleaning business on 1 March. From 1 March, Amy is entitled to 10 days of paid family and domestic violence leave.

In June, Amy uses 2 days of paid leave to deal with the impact of family and domestic violence by accessing police services and attending counselling. She has told her manager about this, and her employer does not need any further evidence from her. Her leave balance reduces to 8 days.

Amy’s entitlement to paid family and domestic violence leave renews to 10 days on 1 March in the following year. This is the anniversary of her start date with her employer.

Example: Workplace policies about family and domestic violence leave
Jo is entitled to 10 days of paid family and domestic violence leave each year under the NES. Jo’s employer also has a family and domestic violence leave policy that provides all employees with an entitlement to 2 days of paid family and domestic violence leave each year. The policy gives examples of the evidence needed in support that includes a support letter from a lawyer or DV Crisis service that says she is getting assistance.

Jo’s entitlement under the NES is more generous than their employer’s policy. This means Jo is entitled to 10 days of paid family and domestic violence leave each year.

When and how can leave be taken?
Paid FDV leave is available if:
a) the employee is experiencing family and domestic violence; and
b) the employee needs to do something to deal with the impact of the family and domestic violence; and
c) it is impractical for the employee to do that thing outside the employee’s work hours.

This may include, for example, time off for:
a) establishing a workplace safety plan;
b) attending medical, financial or counselling appointments;
c) accessing legal advice;
d) establishing or finding safe housing;
e) attending court hearings;
f) attending police appointments; and
g) organising alternative care or educational arrangements for their children.

This is not an exhaustive list.

Paid FDV leave is available in full at the start of each 12-month period of the employee’s employment. It does not accumulate from year to year if it’s not used. It is available in full to all employees, including part-time and casual employees. It is not pro-rata.

An employee can take paid FDV leave as a single continuous 10-day period. Alternatively, the leave can be taken as single or multiple days, or part days (if the employer and employee both agree).

An employer can also agree for the employee to take more than 10 days of paid leave to deal with the impact of family and domestic violence.

How is leave paid?
Leave is paid at the employee’s full rate of pay.

An employee’s full pay rate is their base rate plus any:
• incentive-based payments and bonuses;
• loadings;
• monetary allowances;
• overtime or penalty rates; or
• any other separately identifiable amounts.

Full-time and part-time employees are paid their full pay rate for the hours they would have worked if they weren’t on leave. Casual employees are paid their full pay rate for the hours they were rostered to work when the leave is taken.

What evidence will be required?
Section 107 of the Fair Work Act provides that employees must only provide their employers with evidence to support their accessing leave ‘if required by the employer’.

The optionality of evidence in support has been explicitly addressed in materials published by the Fair Work Ombudsman to demonstrate that an employer does not need to require evidence, it is only if they require it, and the type of evidence that can be relied on.

If an employer requires evidence from an employee, the employer should discuss with the employee the available options, which may include court documents, medical certificate, or a statutory declaration.

In some circumstances it may be difficult for the employee to provide evidence, so employers should be mindful of this.

Example of a clause in a policy or EBA regarding evidence:
Evidence may include any of the following:

• A document issued by the police or a court.
• A written referral, issued by a registered medical practitioner or registered nurse, to a counsellor trained in providing support in family, domestic or sexual violence situations.
• A document issued by a counsellor who is trained in providing support to people experiencing the effects of family, domestic or sexual violence.
• Written confirmation from an Employee Assistance Program provider or from a family, domestic or sexual violence support service that the employee is experiencing family, domestic or sexual violence issues.

Confidentiality
An employer must not, other than with the employee’s consent, use information about a family and domestic violence situation for a purpose other than for the purposes of confirming an employee’s entitlement to leave under this Policy. The exceptions to this are if the employer is required to disclose this information by an Australian law or is necessary to protect the life, health or safety of the employee or another person (as per section 106C of the Fair Work Act).

Employees and managers must maintain appropriate privacy and confidentiality for personal information. Discussions with managers in the line of reporting or with human resources should be on a strictly need-to-know basis.

Pay slips must not mention FDV leave, including leave taken or leave balances. Leave taken will be reflected on pay slips as time worked or another kind of payment for performing work, unless the employee requests it be shown as another type of leave (e.g., annual or personal leave).
A confidential record of an employee’s leave balances will be maintained by the employer.

When supporting other staff
A coworker may be the first person that an employee tells of their experiences of family and domestic violence in a work setting.

An employee may not tell you if a coworker discloses family and domestic violence so you may not know.

It is important that you provide all your employees with the knowledge and resources they need to be able to respond if they receive a disclosure of family and domestic violence.

That means:

• providing all staff with information and training on how to respond to a disclosure
• making sure they understand their responsibilities, including the need for confidentiality
• making them aware of support services they can share or use themselves.

Perpetrators of family and domestic violence
Perpetrators of family and domestic violence are not entitled to access paid FDV leave for the purpose of dealing with matters arising from perpetration. Other types of leave are available, which an employee may be entitled to, such as personal or annual leave, so that they can attend court and behaviour-change programs and other treatment.

• You must maintain confidentiality in relation to alleged perpetrators of FDV.
• Providing support avenues to perpetrators is not a legal requirement, but it is considered best practice for employee support and workplace safety.
• Practical steps: increase security for those experiencing FDV
• Employers should always include the person experiencing the FDV.

Employers may consider:

• Ensuring safe work access and parking: well-lit, close to the main entrance.
• Using an internal code word known to all staff that signals help is needed.
• Ensuring co-workers and workplace systems can protect the worker’s privacy.
• Adjusting the worker’s hours or place of work.

What legal advisors can do

Learn more about FDV and how it operates

Attend specific training and read materials (such as those referenced in this paper).

Encourage employers to have broad policies and include clauses in enterprise agreements to address the issue

Public sector seems to be leading the way on increasing access to FDV leave.

A comprehensive clause addressing Family, Domestic or Sexual Violence Leave has been included in ACT public sector enterprise agreements, with staff able to access up to 20 days of paid leave.

The clause sets out very detailed examples, without being exhaustive, of what the leave may be used for and the types of evidence that may be utilised. Any documentation that is provided in support is to be returned to the employee after being sighted by the Manager, reducing the chance of breaches of confidentiality: ACT Government, ACTPS Employment Portal, https://www.cmtedd.act.gov.au/employment-framework/actps-domestic-family-and-sexual-violence-toolkit accessed 5 June 2024.

Effective from 1 January 2023, NSW Government Sector employees, including casual employees, have access to twenty (20) days paid domestic and family violence leave per calendar year.

Provide information and access to resources, particularly for small business clients:

Family & Domestic Violence 10 Days Paid Leave

“Small businesses do not have the capacity to become experts in handling traumatic and sensitive FDV situations.” (Small Business Organisations Australia submission June 2024)

Resources for people affected by FDV
1800Respect: the national sexual assault, domestic family violence counselling service
Engender Equality: a Hobart-based not-for-profit that provides specialist counselling services for women who are currently experiencing or have experienced family and domestic violence
One in Three: for male victims of domestic violence
Safe at Home: integrated criminal justice response to FDV

A CPD session on this topic is available as a recording here.
Part II of this paper will be available in the LLJ May 2025 edition.

Craig Green
April 2025