Most business owners think of domestic violence as a private matter that happens after hours, between people they have never met. The law increasingly treats it as a workplace issue. When one of your employees is experiencing family and domestic violence, a set of obligations switches on under the Fair Work Act 2009 (Cth) and under workplace health and safety law, and they apply regardless of how small your business is or how uncomfortable the topic feels.
You do not need to become a counsellor, and you should not try to. But you do need to know when the law requires you to act, what you can and cannot do in response, and where a misstep can land you before the Fair Work Commission. This article sets out the duties you actually owe: responding properly to a flexible work request, giving the 10 days of paid family and domestic violence leave an employee is entitled to, keeping the workplace safe, and avoiding a dismissal that an employee can challenge.
Who these obligations apply to
The duties in the Fair Work Act apply to you as a national system employer, a category that captures essentially every private-sector business and the overwhelming majority of small and medium enterprises. If you employ staff under awards or enterprise agreements, or at all, you are almost certainly in scope. State public sector and some other employers fall outside the federal scheme, but for the owner of a typical SME the federal law governs.
What actually switches the obligations on is not your headcount or turnover. It is the employee's circumstances and the action they take. The main triggers are:
- A flexible work request: An employee who is experiencing family and domestic violence, or who provides care or support to a family or household member who is, can ask for a change in their working arrangements. This right is also open to an employee who is pregnant, is the parent or carer of a child of school age or younger, is a carer, has a disability, or is aged 55 or over.
- A request for leave: An employee who is experiencing family and domestic violence and needs to do something to deal with its impact can take paid family and domestic violence leave.
- A safety risk: Your workplace health and safety duty applies independently of anything the employee asks for. If a perpetrator might turn up at your premises, or if your workplace is the only place the employee can be safe, you may be required to act proactively.
There is a point of change worth flagging. Older guides, and older versions of the legislation, said an employee needed to have completed 12 months of service before they could make a flexible work request. That qualifying period no longer applies to requests made after the 2023 amendments introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The right now exists from the start of employment, so do not assume a new employee is outside it.
Duty 1: respond properly to a flexible work request
Part 2-2, Division 4 of the Fair Work Act gives an employee the statutory right to request a change in working arrangements where one of the listed circumstances applies to them. The change can be to their hours, their patterns of work, or their location, and the request must be in writing and must say what change they are seeking and why.
The section is deliberately drafted to cover domestic violence. Section 65(1A) expressly lists an employee who "is experiencing family and domestic violence" and an employee who "provides care or support to" an immediate family member or household member experiencing it. The trigger wording matters, because the obligation to engage with the request exists even where the directly affected person is not the employee themselves.
Once a valid request is made, you have a statutory response duty under section 65A. The requirements are specific and they are not optional:
- Respond in writing within 21 days: Silence is not an answer, and a failure to respond can be treated as a refusal.
- Genuinely engage: Before any refusal, you must have discussed the request with the employee and genuinely tried to reach an agreement about accommodating their circumstances.
- Only refuse on reasonable business grounds: If you do refuse, your written response must set out the grounds, and those grounds must be reasonable.
What counts as a reasonable business ground is defined in the Act by reference to factors such as the cost of accommodating the request, whether you can realistically change other employees' arrangements, and whether the change would have a significant impact on business operations or on customer service. The key point is that the assessment is not made from your own perspective alone. It is open to review. If the employee disputes your refusal, the dispute can be taken to the Fair Work Commission, which under section 65C can arbitrate and, in effect, order you to grant the request or make different changes to accommodate the employee's circumstances.
A common mistake small businesses make is refusing a request because it is inconvenient, or because accommodating it would mean hiring someone for a few hours a week. Cost can be a legitimate ground, but you must be able to point to something concrete and you must have genuinely explored the alternatives first.
A worked example
Consider a shop assistant who has just left her home because of domestic violence and has moved her child to a school on the other side of town, making her usual start time impossible. She puts a written request to you to start later for a period while she resettles childcare. You genuinely cannot cover the morning alone without extra cost. The right response is not a one-line refusal. It is a conversation in which you explain the cost difficulty, ask whether starting later on some days only would help, or whether working from a closer store you operate would, and then put whatever compromise you reach in writing. Documenting that you tried is the single most protective step you can take.
Duty 2: give paid family and domestic violence leave
Since 2018 the National Employment Standards have included an entitlement to family and domestic violence leave. That entitlement was converted from unpaid to paid leave by amendments that took effect in early 2023, and the current position is set out in Subdivision CA of Division 7 of Part 2-2 of the Fair Work Act.
The core entitlement under section 106A is 10 days of paid family and domestic violence leave per 12-month period. The details are worth being precise about:
- The full 10 days are available at the start of each 12-month period of employment.
- The leave does not accumulate from year to year if it is not used.
- It is available in full to part-time and casual employees, not just full-time staff.
- It can be taken as one continuous period, as separate single days, or as shorter periods you and the employee agree to.
Section 106B sets out when the leave can be taken. The employee must be experiencing family and domestic violence, must need to do something to deal with its impact, and it must be impractical to do that thing outside work hours. The Act itself gives the examples: arranging for the safety of the employee or a close relative, including relocation, attending court hearings, accessing police services, attending counselling, and attending appointments with medical, financial or legal professionals.
Practical administration matters. An employee who takes the leave must give you notice and, where you request it, evidence of the need within a reasonable time, under section 107. You must not overstep in what evidence you demand. The employee's safety is the whole point of the scheme, and a demand for detailed proof can itself be intimidating or dangerous. The kind of evidence the regime contemplates is limited and respects the sensitivity of the situation, so take care before you ask for anything more than a statutory declaration or a comparable minimal form.
Duty 3: keep the workplace safe
Your obligations do not begin and end at the Fair Work Act. Under workplace health and safety law in every jurisdiction, you owe a primary duty to ensure, so far as is reasonably practicable, the health and safety of your workers and others affected by your business. Domestic violence can intersect with that duty in real and sometimes urgent ways.
Where an employee tells you that a violent former partner might attend your site, or that they are afraid to be in the office at certain times, that is a safety issue in your workplace, not merely a personal problem. What is "reasonably practicable" will depend on your size and resources, but it can include practical and relatively low-cost measures: being alert to a person who has no business reason to be on site, staggering shifts so an employee and a perpetrator do not overlap, moving workstations, arranging for the employee to work from an alternate location, and having clear guidance for staff on what to do if a threatening situation arises. You should not make these decisions alone, and you should not simply tell the employee to handle it. A considered, documented response is what the duty requires.
There is a boundary here that you will want to be aware of. The courts have accepted that an employer is not expected to restructure its business around an employee's private life, and that an employee must ultimately be capable of performing the inherent requirements of their role. But they have also made clear that an employer must explore the available options and discuss them with the affected employee over a reasonable period before concluding that nothing can be done.
Duty 4: do not respond with dismissal
The risk that raises the stakes highest is the way you react when you genuinely cannot make the employee's request work, or when an employee's circumstances make their attendance difficult.
In Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113, an employee who was the victim of domestic violence worked in the same office as her former partner, who was the perpetrator. After an intervention order was obtained, the employer told her that both of them could not continue working in the office, and effectively that she could no longer work for the company. The Fair Work Commission found she had been dismissed, and that the dismissal was unfair, noting that the employer had not explored all available options or discussed the matter over a reasonable period with those affected. The Full Federal Court upheld that reasoning. The lesson for you is direct: a decision that effectively forces an employee experiencing domestic violence out of the workplace can be treated as a dismissal, not a resignation, and it can be found unfair.
Dismissal and other adverse treatment also expose you to general protections claims under Part 3-2 of the Fair Work Act, and to discrimination complaints under state and territory anti-discrimination legislation. An employee experiencing family violence may act on concerns about work performance or attendance that trace back to their situation, and the way you handle those should reflect the same care you apply to the request itself. If an employee says their difficulties stem from domestic violence, give them the benefit of exploring accommodation and support before anything resembling a performance or termination decision is made.
Consequences of getting it wrong
The consequences of non-compliance are more than reputational. Failure to give an entitlement under the National Employment Standards, including paid family and domestic violence leave, is a contravention of the Fair Work Act and can be pursued as a civil remedy matter. A refusal of a flexible work request that is not grounded in reasonable business grounds, and that was not preceded by genuine discussion, can be taken to the Fair Work Commission and reversed, with the Commission able to order that you grant the request or make specified alternative changes.
An unfair dismissal can result in compensation or reinstatement, and the Moghimi case shows that compensation can run to tens of thousands of dollars. General protections claims can carry penalties as well as compensation for the employee. On the safety side, a failure to respond reasonably to a domestic-violence-related risk that materialises can be the subject of regulator attention under workplace health and safety law, in addition to civil liability. None of these are abstract risks; they follow directly from the way you handle a single request or a single absence.
Compliance checklist
If you run a business that employs staff, this is the practical list to work through:
- Know that a flexible work request can be made from day one of employment, with no 12-month service hurdle.
- Treat every written flexible work request as a legal document with a 21-day deadline.
- Actually meet with the employee and explore alternatives before you ever refuse.
- Put every decision, refusal, or agreed compromise in writing, and keep a record.
- Build paid family and domestic violence leave (10 days per year, available in full to part-time and casuals) into your leave records.
- Handle notice and evidence requests for that leave sensitively, and do not demand more proof than the law requires.
- Think about whether a domestic-violence risk can reach your workplace, and put in place practical safety measures before an incident, not after one.
- Never respond to an accommodation difficulty by effectively telling the employee they can no longer work for you.
When you need a lawyer
Many of these steps look like good management rather than law, and for straightforward situations that is exactly right. A specialist employment lawyer earns their fee when the stakes rise: when an employee disputes a refusal, when a request is hard to accommodate, when a safety concern is serious or urgent, when an employee is, or may become, unable to perform the inherent requirements of their role, or when you are contemplating any decision that could end the employment. A lawyer can help you assess whether your grounds for refusal would actually survive scrutiny, can advise on what evidence you may and may not seek, and can help you frame a response that protects both the employee and your business.
The conversation you cannot skip
The single most consequential step in this area of the law is also the easiest to miss. If you only remember one part of your obligations, remember that the Fair Work Act requires you to genuinely discuss a domestic-violence-related flexible work request and to try to reach agreement before you can refuse it. Refusing on paper, from behind a desk, without a real conversation is precisely the pattern that produced the unfair dismissal finding in Moghimi and the compensation that followed. When an employee raises domestic violence, your first move should be a private, confidential conversation about what would help them stay at work safely, not a decision about whether they can stay at all. What you do in that conversation, and what you write down afterwards, will determine whether you are seen to have complied with your obligations or to have failed them.