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The contents of this blog post were originally created as an interactive quiz for Victorian Law Week 2022. We have replicated this quiz in plain text format here for posterity.
May 29, 2022
All employees who are experiencing family and domestic violence, including part-time and casual employees, are entitled to 5 days of unpaid family and domestic violence leave each year if:
This is enshrined in the National Employment Standards. Some modern awards, enterprise agreements, and workplace policies may offer more unpaid leave, or even paid leave, so always check these for anything offered on top of your 5 days of unpaid leave.
There are many advocates, including JobWatch, calling for this entitlement to be increased to 10 days of paid family and domestic violence leave each year. Watch this space!
Note – permanent full-time employees are also entitled to 10 days of paid personal / carer’s leave every year (pro-rata for part-time employees). This leave can be used if they are not fit for work because of a personal illness or injury.
The law requires that an employee give notice to their employer as soon as practicable. This will be different for each person depending on their individual situation.
For instance, someone taking the leave to attend a pre-booked appointment with their family violence caseworker could give notice once the appointment has been booked. For someone who needs to unexpectedly visit a hospital emergency room, they could provide notice after they have been discharged from hospital.
If their employer requests, the employee is required to provide proof to their employer that they are taking the leave to do something to deal with family and domestic violence that is impracticable for them to do outside of their ordinary working hours.
If you answered Sarah and Maryam, you’re correct!
A permanent employee needs to have completed at least 12 months of continuous service before they are eligible to formally request flexible working arrangements because they are experiencing family and domestic violence. A casual employee needs to have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of this continuing.
A request for flexible working arrangements must be in writing and must set out the details of the changes sought and the reasons for those changes.
An employer must give the employee a written response to their request within 21 days, stating whether the request is approved or rejected. If the request is rejected, the employer’s written response must give reasons for the refusal. The employer can only refuse a request for flexible working arrangements on ‘reasonable business grounds’ – for example, that the new arrangements requested would be too costly to implement or that there is no capacity to change other employee working arrangements to accommodate the changes.
This doesn’t mean that employees like Ling with less than 12 months of continuous service can’t ask for flexible working arrangements – but the employer has no obligation to respond or agree to the request.
Note – Eligible employees can also request flexible working arrangements if they need to provide care or support to a member of their immediate family, or a member of their household, who requires care because they are experiencing family and domestic violence.
In these circumstances, Divya can choose to do any of these actions to address the situation – she can choose to do one, some or all of them!
By law, employers have a positive obligation (i.e must take steps) to ensure the notice or evidence given by the employee taking family and domestic violence leave is treated confidentially, as far as is reasonably practicable. ‘Reasonably practicable’ will be different for each workplace depending on their size, practices, procedures, and more.
All of these things are actions Jane can take to get her job back – she can choose to do one, some, or all of them! Jane just needs to remember that if she chooses to file an Unfair Dismissal claim or General Protections Dispute – Termination claim with the Fair Work Commission, she must do so within 21 days of being dismissed. She should contact her union and/or JobWatch as soon as possible after her dismissal.
She can call JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro) for initial legal information about her rights at work, including what she can do if she’s lost her job.
Thank you for completing our quiz, ‘Family Violence in the Workplace – what legal rights does an employee have?’
We know that experiences of family violence can impact all parts of your life – from your safety, your housing, your financial assets, your friendships and family relationships, to your employment.
As a not-for-profit employment law specialist, JobWatch is here to help you or someone you know with your rights at work if their employment is being affected by their experience of family violence.
You can self-refer or refer someone you know to our free and confidential Family Violence in the Workplace legal assistance project by using this form on our website.