Family and Domestic Violence Leave Policy

What Is a Family and Domestic Violence Leave Policy?

A Family and Domestic Violence Leave Policy is a formal document that outlines how an business supports employees dealing with violent situations at home. It sets out the rules for taking paid leave, the process for notifying the employer, and the support available to keep the employee safe.

In Australia, this policy is not just a "nice to have" addition to your staff handbook. It is a legal requirement. Under the Fair Work Act 2009, all employees are entitled to paid family and domestic violence leave. This policy is the tool you use to communicate that entitlement to your team.

The policy serves two main purposes. First, it ensures you comply with the National Employment Standards. Second, it demonstrates your commitment to a safe and supportive workplace. For business owners, it provides a clear framework to manage leave requests consistently. For employees, it offers reassurance that they will not lose their job or income while they manage a crisis.

When to Use This Document

Every Australian business needs this document if they employ staff. Whether you run a cafe in Melbourne, a trade service in Brisbane, or a consultancy in Perth, you must have this policy in place.

The Start of Employment You should provide this policy to new workers as part of their onboarding process. It sits alongside other essential documents like the Fair Work Information Statement. By giving it to them early, you ensure they know their rights from day one.

Updating Existing Frameworks If you already have a leave policy, you need to check if it includes the current 10-day paid entitlement. Many older policies only provided unpaid leave or fewer days. If your documents are outdated, you should issue this new policy or update your existing Employee Handbook immediately.

When a Situation Arises While you hope you never have to use it, this document becomes active when an employee discloses they are experiencing family and domestic violence. It guides the manager or business owner on how to handle the conversation sensitively and legally. It removes the guesswork from difficult situations.

Integration with WHS You should also refer to this document when conducting risk assessments under Work Health and Safety laws. If an employee's safety is at risk, this policy outlines the leave provisions that act as a control measure to mitigate those risks.

Key Sections and Required Elements

To be effective and legally sound, your policy must contain specific sections. Leaving these out can lead to confusion and potential breaches of the Fair Work Act.

Statement of Purpose and Compliance The document must state that it aligns with the National Employment Standards (NES). It should explicitly mention the Fair Work Act 2009 (Cth). This section sets the tone. It should clarify that the business recognises family and domestic violence as a serious issue that affects the workplace.

Entitlement Details This is the core of the policy. You must specify that all employees are entitled to 10 days of paid family and domestic violence leave each year. This includes full-time, part-time, and casual employees.

You need to explain how the leave accrues. Unlike annual leave, this leave does not build up year after year. The 10 days reset on the anniversary of the employee's start date. If they do not use the days, they do not carry over to the next year.

Definitions Do not assume everyone knows the legal definition. You must define "family and domestic violence" in line with the Fair Work Regulations 2009. The definition covers violent, threatening, or other abusive behaviour by a family member that seeks to coerce or control the employee and causes them harm or fear.

You also need to define "family member." This includes spouses, de facto partners, children, parents, and grandparents. It also includes siblings and relatives according to Aboriginal or Torres Strait Islander kinship rules.

Eligibility and Casuals The policy must be clear that casuals have the same rights as permanent staff from their first day of work. Casuals are paid at their full base rate for the hours they would have worked if they had not taken the leave.

Taking Leave and Notice This section explains the practical steps. Employees should give notice as soon as they can. They do not always need to give notice before they take the leave, especially in an emergency. The policy should outline who they should notify, such as their direct supervisor or HR manager.

Evidence Requirements This area requires careful wording. You can request evidence, but you must be reasonable. The policy must list acceptable forms of proof. This includes statutory declarations, medical certificates, or court orders.

Crucially, you must state that a police report is not required. Often, victims do not report to the police due to safety fears or lack of evidence. Insisting on a police report could breach the Fair Work Act and discourage employees from seeking help.

Confidentiality and Privacy This is a vital section. Under the Privacy Act 1988, businesses must handle personal information sensitively. The policy must promise strict confidentiality. Only the people who absolutely need to know should have access to the information. This protects the employee from further harm or gossip.

Support Services The policy should list external support organisations. This includes 1800RESPECT, Lifeline, and specific legal aid services in your state. Providing these resources shows you care about the employee's wellbeing, not just the staffing roster.

Dispute Resolution Finally, include a section on what happens if there is a disagreement. This usually refers the matter to the standard dispute resolution clause in the employment contract or the relevant Modern Award.

How to Write a Family and Domestic Violence Leave Policy (Step by Step)

Writing a policy does not have to be difficult. Follow these steps to create a document that protects your business and supports your staff.

Step 1: Review the Law Start by reading the Fair Work Ombudsman’s guide on family and domestic violence leave. Ensure you understand the difference between this entitlement and personal leave. They are separate. Family and domestic violence leave is not sick leave. It is specific to dealing with the impact of violence.

Step 2: Adapt a Template Using a reliable template saves time and reduces errors. Look for a template designed for Australian businesses. Ensure it is up to date with the 2023 changes. You can find specific templates for Australian workplaces here.

Step 3: Define Your Scope Decide how this policy fits with your other documents. Will it be a standalone document or part of a broader Leave Policy? A standalone document is often better. It is easier to find and signals that the issue is important enough to warrant its own space.

Step 4: Draft the Content Write the sections outlined above. Use plain English. Avoid legal jargon where possible. Your goal is for every employee to understand their rights without needing a lawyer to interpret the text.

Step 5: Focus on Safety When drafting the "Taking Leave" section, think about safety. Can an employee apply for leave via email if they cannot safely talk on the phone? Can they nominate a support person to communicate on their behalf? Including these options makes the policy practical for people in crisis.

Step 6: Address Payment Mechanisms Clarify how payment works. For permanent staff, it is paid at their base rate of pay. For casuals, calculate the payment based on the hours they missed. You might need to link this to your payroll software settings to ensure accuracy.

Step 7: Include WHS Duties Add a section referencing your duties under the Work Health and Safety Act. Explain that the business will conduct risk assessments if the violence enters the workplace. This might involve changing the employee's work location, phone number, or email address.

Step 8: Review and Approve Once drafted, have the document reviewed. If you have a legal team, use them. If not, a professional HR consultant can check it for compliance. Ensure the tone is supportive and non-judgmental.

Step 9: Distribute and Train Send the final policy to all staff. Do not just file it away. Add it to your onboarding checklist for new hires. Train your managers on how to handle disclosures. They need to know how to respond with empathy and how to activate the leave process.

Common Mistakes to Avoid

Even with the best intentions, business owners can make mistakes when drafting this policy. Avoiding these pitfalls will keep you on the right side of the law.

Requiring a Police Report This is the most common mistake. No Australian law requires an employee to provide a police report to take this leave. In fact, the Fair Work Ombudsman explicitly warns against this. Making it a requirement can be seen as discriminatory and may deter someone from seeking help.

Counting the Leave as Sick Leave Do not ask employees to use their personal or carer's leave for family violence. They are separate entitlements. While an employee might choose to take personal leave if they run out of FDV leave, you cannot force them to use it first.

Ignoring Casuals Some small businesses still mistakenly believe casuals do not get paid leave for this. This is incorrect. Casuals get 10 days paid leave from day one. Treating casuals differently here is a breach of the NES.

Over-sharing Information If an employee tells you they are in danger, do not share that with the whole team. Even telling other managers can be a breach of privacy unless it is necessary for their safety or to administer the leave. Stick to a strict "need to know" basis.

Asking for Too Much Detail When requesting evidence, do not ask for the specific details of the violence. A statutory declaration simply needs to state that the employee is experiencing violence and needs leave. You do not need to know the graphic details to approve the request.

Forgetting State Variations While the NES is federal, WHS laws are state-based. If you operate in Victoria, the Occupational Health and Safety Act 2004 applies. If you are in NSW, it is the Work Health and Safety Act 2011. Ensure your policy references the correct legislation for your state.

Complex Language Writing a policy that is too long or complex is a mistake. If an employee is in a crisis, they need to find the information quickly. Use bullet points, bold text for key entitlements, and keep sentences short.

Legal Considerations (AU)

Australia has a robust legal framework protecting workers experiencing family and domestic violence. As an employer, you must navigate several laws to remain compliant.

The Fair Work Act 2009 (Cth) This is the primary legislation. It embeds the 10-day paid leave entitlement into the National Employment Standards. The law applies to all national system employees. This covers most workers in Australia.

Under this Act, you must not take adverse action against an employee because they have taken, or want to take, this leave. Adverse action includes firing them, demoting them, or changing their shifts to punish them. Doing so can lead to severe penalties and court action.

Work Health and Safety (WHS) You have a duty of care to provide a safe work environment. Family violence is a WHS issue. If the violence follows an employee to work, such as abusive phone calls or an abuser turning up at the site, you must manage the risk.

Safe Work Australia outlines that PCBUs (Persons Conducting a Business or Undertaking) must identify risks and implement controls. Your policy should reflect this. It might mention "safety plans" or changes to work patterns as part of the WHS response.

Privacy Legislation The Privacy Act 1988 regulates how you handle personal information. Information about domestic violence is "sensitive information." You need consent to collect it, and you must protect it. If you keep records of the leave and the reasons, these must be stored securely. A breach of privacy can lead to complaints to the Office of the Australian Information Commissioner (OAIC).

Anti-Discrimination Laws The Sex Discrimination Act 1984 makes it unlawful to discriminate against someone because of their family responsibilities. This legislation supports the NES provisions. It ensures that a woman cannot be fired for needing time off to attend court hearings related to domestic violence.

State Specifics Check the specific WHS regulations in your state.

• New South Wales: The Work Health and Safety Act 2011 (NSW) includes a Code of Practice on managing psychosocial hazards.
• Victoria: The Occupational Health and Safety Act 2004 (Vic) has strong duties regarding psychological health.
• Western Australia: Recently harmonised its WHS laws, bringing it in line with the national model.

While the leave entitlement is federal, the way you manage safety and risk must align with your state's WHS authority.

Frequently Asked Questions (preview)

Do I have to pay out unused FDV leave when an employee leaves? No. The 10 days do not accumulate like annual leave. If an employee leaves your business, you do not have to pay out any unused family and domestic violence leave.

Can an employee take the leave in hours? Yes. The leave is available in full days or as part of a day. For example, an employee might take a few hours off to attend a court appointment and return to work later. You must pay them for the hours they would have worked during that time.

What if I run a small business and cannot afford to backfill the role? The entitlement is non-negotiable. You must allow the leave. However, you can discuss the timing of the leave with the employee to minimise disruption to the business, provided it does not unreasonably refuse their request or compromise their safety.

Is a statutory declaration enough proof? Yes. A statutory declaration is one of the most common and acceptable forms of evidence. It is a legal document signed before an authorised witness. It confirms that the employee is telling the truth about their situation.

Does this apply to contractors? Generally, no. The NES applies to employees. Independent contractors are not entitled to this leave under the Fair Work Act. However, some modern awards or enterprise agreements might have different definitions. You should check the specific terms of engagement for your contractors.