Family and Domestic Violence Leave for Residential Builders

What it is

Family and domestic violence leave is a paid minimum entitlement that every employee in the national workplace relations system can access. It sits in the National Employment Standards in Division 7 of Part 2-2 of the Fair Work Act 2009. The entitlement is 10 days in a 12 month period. The 10 days are available upfront on the first day of the cycle. They do not accrue. They do not roll over.

For a residential builder this matters because the people most likely to need the leave are not always office staff. A site administrator, a labourer, an apprentice and a casual cleaner are all covered. The entitlement applies to full time, part time and casual employees. It applies whether the employer has two staff or two hundred.

Commencement dates

The commencement was staged. The entitlement started on 1 February 2023 for employees of employers who were not small business employers. It started on 1 August 2023 for employees of small business employers. A small business employer for this purpose is one with fewer than 15 employees on a head count basis at the relevant time.

A residential builder with 14 employees on 31 July 2023 was a small business employer on that day. From 1 August 2023 every employer in the national system, including that builder, had the obligation to provide the full 10 day paid entitlement.

What the leave covers

Family and domestic violence is defined in section 106B of the Fair Work Act 2009. It covers violent, threatening or other abusive behaviour by a close relative of the employee, a member of the employee's household or a current or former intimate partner that seeks to coerce or control the employee and that causes them harm or fear.

An employee can take the leave to deal with the impact of family and domestic violence where it is impractical to do so outside their ordinary hours. Common examples include arranging for the safety of the employee or a close relative, attending court, accessing police services, attending counselling or attending medical appointments.

Payment

Full time and part time employees are paid at their full rate of pay for the hours they would have worked. Casual employees are paid at their full rate of pay for the hours they were rostered to work in the period they take leave. Full rate of pay includes incentive based payments, bonuses, loadings, monetary allowances, overtime and penalty rates that the employee would have received for the hours.

Confidentiality

Confidentiality is not optional. Section 106C of the Fair Work Act 2009 imposes duties on employers to keep information about an employee taking family and domestic violence leave confidential. Information must be kept as confidential as reasonably practicable and the employer must not disclose it unless required or authorised by law, necessary to protect the life, health or safety of the employee or another person, or the employee consents.

Pay slip rules support this. An employer must not show family and domestic violence leave on an employee pay slip. Records may be kept in the employer's own files in a coded form or as another category of leave to protect the employee.

For a residential builder this has practical effects. The bookkeeper, the office manager and the project manager all need to understand that any reference to the leave must stay out of group emails, payroll exports that go to subcontractors and toolbox talk sign in sheets.

Notice and evidence

An employee has to tell the employer as soon as practicable that they will be taking the leave. The notice can be given after the leave has started. The employer can ask for evidence that would satisfy a reasonable person that the leave is for a permitted purpose. Evidence can include a document from the police, a court, a family violence support service or a statutory declaration. The employer must not refuse the request for evidence to be confidential.

What a compliant policy looks like

A residential builder does not need a long policy. A short written policy that does five things will satisfy the Fair Work Ombudsman in almost every case:

• States that the 10 day paid entitlement applies to all employees on the first day of each 12 month period
• Names who in the business the employee can speak to and lists at least two options, normally the office manager and the director, in case one is unavailable
• Sets out how the request is recorded confidentially in payroll
• Names the support services the employer will refer the employee to, including 1800RESPECT and the relevant state police family violence command
• States that no employee will be disadvantaged for taking the leave

The policy should be issued with the employment contract for new starters and circulated to existing staff. It does not need to be on the WHS noticeboard. A copy in the employee handbook and a copy in the payroll system is enough.

Adverse action risk

Taking family and domestic violence leave is a workplace right under section 341 of the Fair Work Act 2009. Adverse action taken because an employee exercised that right is unlawful under section 340. For a residential builder the risk shows up when a worker takes the leave and is later not offered a place on the next job. The employer carries the reverse onus to prove the action was not taken for the prohibited reason. Documenting the operational reason for any decision that affects the employee in the months after the leave is sensible practice.

Where it interacts with WHS

Family and domestic violence can also be a psychosocial hazard at work, particularly where a perpetrator contacts the employee on the worksite or where an employee is exposed to vicarious trauma. The PCBU duty to manage psychosocial risk sits alongside the leave entitlement. A complete response covers both the HR side and the WHS side.