Domestic Family Violence Act
Further changes have been made to the Domestic Violence Act, which has now been renamed the Family Violence Act 2018.
So, let’s take a look at the new Family Violence Leave provisions that came into effect on 1 April this year. These new provisions have yet to be tested, however there are several concerns from Employers regarding how they are to implement these new provisions if an Employee makes a request.
Since 1 April 2019, new legislation has provided for paid Family Violence leave, flexible working arrangements and additional protections against unlawful discrimination in relation to Employees who are affected or have been affected by Family Violence.
Family Violence is defined as ‘violence inflicted against any person or by any other person with whom that person is, or has been, in a family relationship.’ Violence means all or any of the following: physical abuse; sexual abuse; psychological abuse. Violence against a person includes a pattern of behaviour (done, for example, to isolate from other family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse. This violence is coercive or controlling and it causes the person, or may cause the person, cumulative harm.
The act of violence has a very broad definition and is not restricted to physical abuse, but also includes more subtle forms such as exploitation of financial dependency, sexual abuse and psychological abuse( for example: intimidation, harassment, damage to property, threats of physical abuse, preventing or limiting employment opportunities or access to education). In relation to a child, Family Violence can occur if the perpetrator causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a family relationship or: puts the child or allows the child to be put at real risk of seeing or hearing that abuse occurring. The Act also includes the ill-treatment of household pets or animals whose welfare affects significantly, or is likely to affect significantly, a person’s well-being.
In respect to this definition a single act may amount to abuse. It is also specified that a number of acts that form part of a pattern of behaviour may amount to abuse, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
So, what defines a family relationship? The Family Violence Act 2018 states that “a person is in a family relationship with another person if the person;
- Is a spouse or partner of the other person; or
- Is a family member of the other person; or
- Ordinarily shares a household with the other person; or
- Has a close personal relationship with the other person’.
In assessing whether these criteria are met or not depends on the specific circumstances and takes into consideration a number of different aspects, e.g. time spent together, the place or places where that time is ordinarily spent and the duration of the relationship. A sexual relationship is not necessary, nor do two people have to live together for it to be deemed a family relationship.
Now down to the implementation: Family Violence does not have to have occurred during a person’s employment with you, it may have occurred at any time previously. An Employee can make a short-term flexible working arrangement request at any time from the commencement of their employment, there is no qualifying period. However, unless agreed otherwise, an Employee may only take paid Family Violence leave after:
- Six months continued employment with the Employer; or
- If the Employee, over a period of six months, has worked for the Employer for at least an average of 10 hours per week but no less than one hour every week and no less than 40 hours in every month during that six months period
There is also no restriction on how often an Employee could take paid Family Violence leave for the same incident of Family Violence. The only cap that exists is that the entitlement is limited to 10 days per each 12-month entitlement period, regardless of the number of Family Violence incidents.
So, when it comes to recruiting staff, we know many of you will be thinking that you will put something into your recruitment process – however this is deemed to be unlawful discrimination under the Humans Right Act 1993.
When it comes to the flexible working arrangements, this may mean reduced hours/days of work and therefore reduced payments to an Employee. As an Employer you can ‘top up’ an Employee’s pay by using the paid Family Violence leave, if the Employee requests this. We recommend that any such arrangements be in writing.
If you would like to discuss a particular situation or update your IEA’s please contact us.