It’s hard to leave an abusive relationship if you don’t have an income. So, keeping your job can make the difference between escaping and being trapped in a violent relationship.
But holding down a job can be hard if your boss doesn’t allow you time off to move house, deal with crises, meet with lawyers or even work from a different location so your abuser can’t find you at work.
Some employers do offer such flexibility but unions are now calling for a statutory right to paid domestic violence leave.
Such measures would cost employers. The ACTU’s proposals have drawn criticism from the Australian Industry Group. The group’s chair, Innes Willox, argues that:
Paid domestic violence leave is extremely uncommon internationally. The only country that is known to have paid domestic violence leave at a national level is the Philippines, but the entitlement is not well-known in the country or well-enforced.
It is certainly true that most jurisdictions do not grant workers a statutory right to paid domestic violence leave. But while domestic violence leave is not common, there are considerable moves to introduce paid domestic leave provisions in Canada, New Zealand and the US.
Workplace laws in many countries, include Australia, already require employers to take various steps to manage employees who are experiencing domestic violence. Such laws include domestic violence criminal laws, work health and safety laws, anti-discrimination laws and some industrial relations laws.
In 2015, the UK amended its domestic violence laws to make psychological abuse a crime but did not introduce a statutory right to domestic violence leave.
In Canada, only one province – Manitoba – has paid domestic violence leave. Under that law, employees experiencing domestic violence leave to five paid days of leave and a further five days of unpaid leave.
The federal Canadian government is considering providing federal employees a right to paid domestic violence leave. Other Canadian provinces, such as Ontario, are also considering whether paid and unpaid domestic violence leave should be on their books.
While unpaid leave is available in some jurisdictions within the US, such as the Illinois Victims’ Economic Security and Safety Act, other states provide employees access to existing paid leave.
This is not in addition to other leave, but instead enables employees to access existing leave in new ways. In Minnesota and the state of Washington, employees are allowed to use their sick leave if they are experiencing family violence.
The US Congress is considering far more expansive laws that will increase employees’ overall entitlement to leave, such as an act that would provide employees a right to paid leave to help escape domestic violence.
While New Zealand does not currently have a statutory right to paid domestic violence leave, many employers do offer employees such leave anyway. In New Zealand, the prevalence of paid domestic violence leave is influencing public debate on the question of whether or not New Zealand’s statutes should enshrine such a right in law.
The Australian situation
The Australian Industry Group is right to say that paid domestic violence leave is uncommon internationally.
Australia’s Fair Work Act does not provide workers a right to domestic violence leave. But Section 65 of the same law does give employees a right to demand flexible working arrangements.
Under this rule, workers can request that their boss adjust their hours of work, work patterns or work location. The employer may refuse the request only on “reasonable business grounds”.
The National Employment Standards (NES) – ten minimum employment entitlements that have to be provided to all employees – in the Fair Work Act do not currently provide for domestic violence leave.
However, the Victorian Royal Commission into Family Violence report has recommended the NES include an entitlement to paid family violence leave for employees (other than casual employees) and an entitlement to unpaid family violence leave for casual employees.
Employers lead the way
While Australia has been slow to adopt domestic violence leave in statute, employers within Australia have led the way in providing employees such leave.
The paid domestic violence leave included in Victoria’s Surf Coast Shire Council in Torquay was one of the first agreements to include such leave in the world. This agreement provided survivors of domestic violence an extra 20 days a year of paid leave.
Since this agreement has been struck, the number of enterprise agreements to include paid domestic violence leave has risen to cover thousands, if not tens of thousands of workers.
The Victorian Royal Commission into Family Violence report, released in March 2016, identified 840 enterprise agreements that contained a family violence provision of some kind, most of them providing for family violence leave.
The public sector is embracing paid domestic leave, with Victoria set to offer employees 20 days paid leave, South Australia 15 days and Queensland ten days.
It is encouraging to see employers lead the way, but Australian workers should have guaranteed access to domestic violence leave.
At a minimum, workers should be able to access their personal/sick leave when they confront domestic violence and, when that runs out, people should receive additional support. We must find ways to give survivors and their children the economic security they need to escape violence and begin to rebuild their lives.
The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.
Authors: Paul Harpur, Senior Lecturer, TC Beirne School of Law, The University of Queensland