“I was provided with 12 days paid sick leave per annum and I used all my sick leave each year.  We were together and I sometimes took the occasional leave day when I ran out of sick leave.  Mondays were the main day I took sick leave because on many occasions on a Sunday night he would get drunk and pick a fight, that would result in a threat to kill me, and so I would sleep with one eye open and be exhausted the next day.”

Above is a recount of one victim of domestic violence as was presented to the Fair Work Commission. These words speak not only of the horrors of domestic violence, they demonstrate the argument of the Australian Council of Trade Unions and various support groups who assert that domestic violence leave should be incorporated into the National Employment Standards as a standalone entitlement.

Last year, the Fair Work Commission rejected the Australian Council of Trade Unions’ push for 10 days of paid domestic violence leave. The commission nonetheless acknowledged the need for at least an entitlement to unpaid domestic violence leave, pending further discussion as to the quantum and operation of that leave. Those conversations took part in the last quarter of 2017 and remain ongoing.

In principle, the entitlement is an important step in redressing domestic violence in Australia. As evinced in the excerpt above, victims of domestic violence often exhaust other forms of leave, and require paid leave to facilitate the moving out from a violent household. Research shows that escaping a violent relationship can cost in excess of $18,000, taking into account moving expenses, medical costs, counselling and lawyers.

It is when delineating the quantum and deciding upon the precise employer obligations that the matter of domestic violence leave has attracted ‘robust debate’ (to borrow the strained vocab of the politician). The argument against a universal entitlement is that not all employers can accommodate for the needs of the victim. Smaller workplaces are likely to be severely burdened by paid leave requirements.

What must employers do?

At the time of publication of this article, there is no entitlement to paid or unpaid domestic violence leave under the National Employment Standards. The most recent statements by the Fair Work Commission suggest that an entitlement to unpaid domestic violence leave is imminent, while paid leave remains an open possibility.

There is currently only one standalone entitlement for victims of domestic violence under the National Employment Standards; namely, domestic violence is grounds for requesting flexible work arrangements. For more information on employer obligations regarding requests for flexible work arrangements, see our previous article.