PROTECTIONS FOR WORKERS EXPERIENCING FDV

As at 1/09/2023

Further protections from discrimination on the basis of workers experiencing family and domestic violence (‘FDV’) are on the horizon. Already, employers are unable to take ‘adverse action’ against employees who are accessing their workplace rights to manage family and domestic violence, however the Albanese Government is considering further measures to encourage employees to speak up about their circumstances at work when they need additional support.

Workplace rights relating to FDV

Paid family and domestic violence leave
As of 1 August 2023, all national system employees, including casuals, are entitled to access 10 days of paid FDV leave per year. These 10 days are immediately available in full, at the beginning of every 12-month period. The leave does not accrue year to year, like it does for personal leave.

This leave is available to employees who are experiencing FDV, and who are needing to do something to deal with the impact of the family violence that is impracticable for them to do outside their standard work hours.
FDV is defined as violence, threatening or other abusive behaviour by a close relative, a member of the employee’s household, or a current or former intimate partner, that seeks to coerce or control the employee or causes them to be fearful.

Whilst evidence may be required by the employer to approve the employee FDV leave, any evidence supplied by workers in support of their application for FDV leave must be kept confidential. Evidence could include a letter from the GP, a statutory declaration, a copy of a notice of listing from the court or a photo.

Requesting flexible working arrangements
National system employees (including regular and systematic casuals) who have completed at least 12 months of continuous service with their employer, are able to make a request for flexible working arrangements if they are experiencing FDV, or they provide care or support to their immediate family or a member of their household who is experiencing FDV.

Employees with these circumstances can request whatever they feel would assist them, for example, working less hours, working from home or changing their days of work. Any requests made must be in writing to the employer, and must set out the changes sought and the reasons for the change. An employer then has 21 days to respond to the request in writing, and they can only refuse the request on reasonable business grounds and after genuine consultation with the employee.

As of 6 June 2023, the Fair Work Commission has new powers to resolve disputes relating to requests for flexible working arrangements, so the employer cannot simply refuse the request without genuine reasons.
Make sure you get in touch with us immediately if you feel like your employer is punishing you for accessing these workplace entitlements, as this may be unlawful under the general protections provisions of the Fair Work Act.

Workplace discrimination

Unfortunately, workers in Victoria are not currently protected from discrimination on the basis of experiencing FDV under our anti-discrimination laws.

Earlier this month, however, the Albanese Government announced their intention to include ‘experiencing FDV’ under one of the protected attributes in the Fair Work Act. If passed, this would mean that an employer would be prohibited from taking ‘adverse action’ because a worker is experiencing FDV. ‘Adverse action’ is a broad concept, ranging from dismissal, getting less hours, being targeted for increased KPIs or simply differential treatment that creates a detriment. Whilst the protections against adverse action because of discriminatory reasons under the Fair Work Act are historically more difficult to prove than under the state and federal anti-discrimination legislation, it is a step in the right direction. Tony Burke will introduce this initiative alongside other changes in Parliament next month. In the meantime, we will continue to advocate for the inclusion of this protection under the Equal Opportunity Act 2010 (Vic) for our members.

If you are facing FDV, please contact CASA house or call 1800 737 732 (1800RESPECT) for support. If you are thinking about making a flexible working arrangement request, or you wish to access your FDV leave entitlements, feel free to get in touch with us if you need support. The Fair Work Ombudsman has developed a template letter that employees can use to formally request flexible working arrangements that can be accessed here