Paid DFV Leave & Flexible Work Arrangements

The Federal Government first introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill in July 2022. In November 2022, the Bill passed into law and became an act, receiving accent on 6 December 2022. This act made a significant number of amendments to the Fair Work Act 2009 (FW Act) including one significant change of the introduction of 10 days of paid DFV Leave for all employees in businesses with 15 or more staff. This change came into effect on 1 February 2023 for large employers and 1 August 2023 for employers with fewer than 15 employees (including part-time and casual employees).

Associated with this amendment were changes in the process for employees to be able to make requests for FWAs and the way that employers are required to deal with these requests.

All employees are now entitled to 10 days paid domestic and family violence leave (DFV Leave).

What has changed in DFV Leave?

The amendments enshrine paid DFV Leave as a new National Employment Standard (NES). The new entitlement will apply to all employees covered by the NES, regardless of their employment status or length of service. It replaces the previous NES entitlement of five days of unpaid DFV Leave.

The Government has also expanded the definition of domestic and family violence under the FW Act. It now captures the actions of “a member of the employee’s household, or a current or former intimate partner of an employee“, where the action “seeks to coerce or control the employee and that causes them harm or to be fearful“.

When can DFV Leave be taken?

DFV leave can be taken immediately. Importantly, unlike personal leave or annual leave, DFV Leave does not gradually accrue throughout the year, and cannot be carried over from one year to the next.

Under the FW Act, employees can access paid DFV Leave if they are experiencing domestic or family violence and need support, or to access services to deal with the impact of family and domestic violence which is impractical to do outside of work hours. This could include making arrangements for their own safety or the safety of a close relative, court appearances, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

Confidentiality

Employers must take steps to ensure information concerning notice or evidence of domestic or family violence an employee has given is treated confidentially, as far as it is reasonably practicable to do so. This does not prevent an employer from disclosing such information if the disclosure is required by Australian law or is necessary to protect the life, health or safety of the employee or another person.

What should employers do?

Employers must approach each request sensitively and, on a case-by-case basis while ensuring they respect their employees’ safety and privacy. Important steps employers should take immediately are:

• ensure that payroll systems have been updated to reflect the introduction of DFV Leave;
• ensure that payroll systems do not include reference to DFV Leave on employee’s payslips or other documents (instead, recording the leave as ‘special leave’, or ‘miscellaneous leave’ etc);
• notify all employees that DFV Leave is now available and encourage them to use it where required; and
• prepare a policy and/or procedure for employees outlining the leave available, and the process for requesting it, including evidence required, the way requests will be handled, and the documents stored.

Further, employers should provide staff (especially managers) with training on domestic and family violence and how to support colleagues experiencing it.

Like existing leave types, employers may still request evidence from employees as part of their application process. This evidence must convince a “reasonable person” that the leave was taken to deal with the impact of domestic and family violence.

Regardless of whether an employer chooses to maintain its records relating to DFV Leave employees should not be put at risk of further harm or breach of their privacy.

Employers may consider creating a single contact point for leave requests, such as a dedicated welfare officer within human resources (or equivalent) to handle requests sensitively on the employee’s behalf.

What about existing leave types?

Personal/carer’s leave is still available to an employee who is experiencing domestic or family violence if the employee would be entitled to take personal/carer’s leave. However, employers should tell employees about their entitlement to paid domestic or family violence leave if they can access it.

Note: Employers with less than 15 staff (small businesses) may offer DFV Leave from 1 February 2023, however, they will only formally be required to provide DFV Leave from 1 August 2023.

Note: Only national system employees covered by the FW Act are covered by this change currently. Non-national system employees (e.g. most state and territory public servants) will be covered once Australia ratifies the International Labour Organisation Convention on Violence and Harassment (No. 190).

The FWAs associated with DFV

As the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 came into effect, the rules relating to requests for flexible work arrangements (FWAs) were amended to impose new, stricter, requirements on employers and allow for greater scope in employees affected by family and domestic violence to make such requests. The greater scope allows for employees who have a member of their immediate family or household experiencing family and domestic violence, to also raise requests for FWAs.

Changes regarding FWAs

In effect from 6 June 2023, the new changes will allow employees who have a member of their immediate family or household experiencing family and domestic violence to request for FWAs, as opposed to the current legislation which states “violence from the member’s family”.

The Amendment Act also introduces a more detailed procedure for responding to requests for FWAs. Employers are required to discuss an employee’s request and genuinely try to reach an agreement before notifying the employee of a decision within 21 days.

If an employer refuses a request, it must:

• provide detailed reasons for the refusal, including the reasonable business grounds on which it relies;
• set out what other changes (if any) the employer is willing to make to accommodate the employee’s circumstances or, in the alternative, state that there are no such changes that the employer is willing to make to accommodate the employee’s circumstances; and
• provide information on the new dispute resolution procedures.

The new dispute resolution procedures require that if an employer refuses an employee’s request for FWAs or does not respond within 21 days, both parties must try and resolve the dispute at the workplace. Failing that, either party can refer the matter to the Fair Work Commission, where the dispute may be resolved through mandatory and binding arbitration, and various orders to grant the request or make accommodations can be made.

Employers should note that breaches of the requirements above or a breach of a Fair Work Commission arbitration order may result in civil penalties.

Therefore, this comes as a reminder for all employers to:

• update workplace policies and review employment contracts to make sure the terms contained are consistent with the new laws; and
• give genuine consideration and effectively communicate their decisions to employees’ requests for FWAs.

What are “Reasonable Business Grounds”?

Employers have a right to refuse FWA requests on reasonable business grounds, including:

• that the new working arrangement would be too costly for the employer;
• that there is no capacity to change the working arrangements of other employees to accommodate the request;
• that it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the request;
• that the requested arrangements will be likely to result in a significant loss of efficiency or productivity; or
• that the requested arrangements would likely have a significant negative impact on customer service.

NBIA Members receive free over-the-phone and email HR & IR advice from our consultant. If you have any queries or concerns relating to DFV Leave or FWAs, or any other workplace matter, please call the NBIA Membership Hotline 1300 557 022 or email the membership officer.