Recent legislative changes in New Zealand introducing 10 days paid leave for victims of domestic violence, are likely to throw up some thorny issues on both sides of ‘The Ditch.”

The innovative initiative rightly has been lauded as a welcome boon to New Zealand’s victims of domestic abuse, particularly given the high rates of home-spun violence in that country. The new legislation, set to come into effect next year, will mean any person found to have suffered domestic violence will become entitled to 10 days paid leave from work, in addition to their standard holiday and sick leave entitlements. That’s precisely the kind of practical assistance that can often make a crucial difference for abuse victims struggling to escape the cycle of violence, find a new home and establish a safe haven for themselves and for their children.

In Australia, statistics show that one in three women are directly impacted by domestic violence, suggesting violence in the home has reached similarly endemic proportions here. Our own Fair Work Commission now allows employees to take five days unpaid leave each year if they need to deal with the impact of family and domestic violence, and it is impractical for them to do so outside their ordinary hours of work. That new entitlement applies to all employees covered by an industry or occupational award, and there is already talk in the corridors of a possible move to a New Zealand-type model of paid leave for domestic violence sufferers.

At one level that all makes eminently good sense, given the evident prevalence of domestic violence here in Australia. But the question will inevitably arise as to what kind, and what level, of domestic violence will entitle a claimant under such legislation to take leave from their work, whether paid or unpaid, and how that violence will be established as a pre-requisite of any claim.

Workplace entitlements of any kind of course come at a cost to the community, so it is important that the metes and bounds of eligibility to such entitlements are clearly defined and understood. The Award entitles a worker to take the leave “to deal with family domestic violence.” But at the moment, at least under Queensland legislation, the term “domestic violence” is very broadly defined, and extends from clearly and obviously violent behaviour such as actual physical assault and wilful damage, to more obscure and, some may argue, innocuous transgressions such as making derogatory remarks, or repeatedly contacting someone by telephone or on social media. Given that most applications for domestic and family violence protection orders currently result in the alleged offending party simply consenting to the order without admitting any misbehaviour, will a domestic violence order per se, that is, one consented to without the allegations being tested, automatically qualify its recipient to leave, and perhaps other entitlements, under workplace legislation?

Fair Work has provided guidance as to when employees can take this leave when dealing with the impact of family and domestic violence and it’s impractical to do so outside their ordinary hours of work. This includes making arrangements regarding their personal safety or the safety of a family member along with attending court hearings and accessing police services. This entitlement is of course very new to the Australian workplace and legislating the 5 days leave, whilst unpaid, is an encouraging step towards solving a pervasive issue. However, the legislation needs to continue to balance the added strain on small businesses and offer up clarity to ease the access to this much needed support when people are trying to escape a violent relationship.

Gisele Reid, Family Lawyer and Migration Agent

Gisele Reid - Family Lawyer