Women’s Legal Services Australia (WLSA) advocated for the introduction of paid family and domestic violence leave (FDV leave). We are pleased to contribute to this review of the operation and impact of the amendments to the Fair Work Act 2009 that enshrined FDV leave as a universal entitlement in the National Employment Standards.
WLSA also recognises the key role that Ludo McFerran had in the recognition of family and domestic violence as a workplace issue and highlight her ongoing concerns with the implementation of the paid leave entitlement.[1] In her words, “Unless the entitlements are well implemented, employees informed of their rights, managers and HR personnel trained to manage issues such as confidentiality and safety, we will fail to make that difference for which the leave intended.”
Women’s Legal Services have expertise in domestic and family violence and the experiences of women with intersecting workplace issues. In our experience, paid FDV leave can be of significant assistance to women, but we have also seen that in many cases the availability of the leave is not well known by both employees and employers, or the process of applying for the FDV leave has been difficult and resulted in negative consequences for the employee.
We make the following recommendations for this Review to consider:
- The Federal Government should work with key stakeholders such as employers’ associations, industry groups, unions, and key statutory agencies like the Fair Work Ombudsman, Fair Work Commission, the Federal Circuit and Family Court of Australia and SafeWork to promote the awareness and use of the existing Fair Work Ombudsman resources on FDV leave by employers.
- The Federal Government should fund an awareness raising campaign regarding the availability of paid FDV leave, including a public education campaign and the development of accessible and culturally appropriate resources.
- Targeted education materials and resources should be developed and delivered through the Law Council of Australia in conjunction with the Federal and State/Territory Attorneys General to assist lawyers, judicial officers, and court staff who are not employment specialists, but who will be advising and interacting with women engaged in legal systems such as the criminal justice or family law system, as to the availability of FDV leave in their workplaces.
- The Federal, State and Territory Governments should fund Women’s Legal Services to deliver training to other frontline and community organisations on the paid FDV leave entitlement, how it works in practice, how to support a client who may want to access it, and how to refer to a specialist organisation if there are issues accessing the leave.
- A wider range of examples should be provided in the Fair Work Ombudsman guidance material to demonstrate:
- an employer who does not require any evidence to be provided;
- the types of evidence that can be used;
- a broader range of behaviours that could be considered domestic and family violence, including systems abuse; and
- examples of systems abuse that can occur, including an explanation of why someone is experiencing domestic and family violence may also be accused of systems abuse.
- The evidence requirement should be removed from section 107(3) of the Fair Work Act so that there is a presumption in favour of granting FDV leave without the need to provide evidence, provided the notice requirements are met.
- The Federal Government should set up a scheme (similar in nature to the Fair Entitlements Guarantee), where an employee who cannot access paid FDV leave from their employer can apply for the equivalent payment.
- There should be recognition that FDV leave is part of a broader package, and governments need to fund the development and rollout of the broader package.
- The current FDV leave provision should be extended to also cover sexual violence.
A bare legal entitlement is worthless if it does not translate into tangible, accessible benefits for employees, or as Ludo McFerran succinctly puts it: “the turning point becomes a dead end.”
[1] Ludo McFerran (2022) “Opinion piece: Paid domestic violence and family violence leave: A turning point in the recognising DFV as a workplace issue?” Accessed 30 May 2024 at https://www.monash.edu/__data/assets/pdf_file/0006/3063327/McFerran-2022_Opinion-piece.pdf