The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the ‘Bill’)

Legislation passed through Parliament on 6 December 2018 to amend the Fair Work Act 2009 and give employees an entitlement to five days’ unpaid family and domestic violence leave each year (as part of the National Employment Standards). This will become law once the Bill receives Royal Assent by the Governor-General.

 

During a 4 yearly review of modern awards on 6 July 2018, the Full Bench of the Fair Work Commission decided that the entitlement:

 

• will apply to all employees (including casuals);

• will be available in full at the commencement of each 12 month period rather than accruing progressively during a year of service;

• will not accumulate from year to year;

• will be available in full to part-time and casual employees (i.e. not pro-rated); and

• will not require employees to access any available paid leave entitlement before accessing unpaid family and domestic violence leave.

 

The Full Bench characterised family and domestic violence as “violent, threatening or other abusive behaviour by a close employee that:

• seeks to coerce or control the employee

• causes the employee harm or to be fearful.

 

A close relative of the employee is a person who:

• is a member of the employee’s immediate family (including a former spouse or de factor partner), or

• is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.”

 

Employees will be entitled to the leave if they need to deal with the impact of family and domestic violence and this can only be practicably done within their ordinary hours of work (examples include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services).

 

The Full Bench decided that the time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

 

Notice Requirements

 

Employees must give their employer notice of the taking of the leave as soon as practicable and also advise of the expected length of leave they will be taking. If the employer so requires, the employee must give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose (for example a court or police document, a statutory declaration or a document issued by a family violence support service).

 

Awards

 

On 1 August 2018 all industry and occupation awards were updated with a clause to include this entitlement. This new clause applies from the first full pay period on or after 1 August 2018. At present, enterprise awards and state reference public sector awards do not include the entitlement but there may be other entitlements included within those individual awards.

 

Takeaways for Employers

 

While it is unnecessary to address this leave entitlement in the employment contract (as if a contract or workplace policy provides less than the minimum entitlement in the applicable award, the award entitlement will apply), employers should be aware of it. Employers will need to ensure information concerning the employee is treated confidentially.

 

Please contact Eve Lynch if you have any questions or employment law issues.