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Unpaid Family and Domestic Violence Leave for more employees

Libby Pallot, Anthony Massaro, Abbey Burns, Ben Tallboys, Caitlin Walsh

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) was passed on 6 December 2018, and received Royal Assent on Tuesday 11 December 2018.

The Bill amends the Fair Work Act 2009 (Cth) to provide employees with a new entitlement of 5 days’ unpaid family and domestic violence leave in the National Employment Standards.  As we previously reported, unpaid family and domestic violence leave was limited to employees covered by modern awards, or otherwise at the discretion of their employer. The amendment to the NES is in line with the model clause that was inserted into modern awards this year. 

What does this mean?

Now that the NES has been amended, employees (including casual employees) will be entitled to take unpaid leave when they are experiencing family and domestic violence and need to do something to deal with the impact of that violence, where it is impractical to do so outside of their ordinary hours of work.  Family and domestic violence is defined as violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee, and causes the employee harm or to be fearful.

Actions an employee may need to take to deal with the impact of family and domestic violence include:

  • arranging for the safety of either themselves or a close relative (including relocation);
  • attending urgent court hearings; or
  • accessing police services.

Eligible employees will now be entitled to 5 days of unpaid family and domestic violence leave in any 12 month period of employment. This extends to all types of employees and is available in full at the commencement of each 12 month period, rather than accruing through the year.  The leave doesn't accumulate from year to year.  For casual employees and employees hired for a specific time or task, the start of the employee’s employment will be taken to be the date of their first engagement with their employer.

Employees can take family and domestic violence leave in separate periods of one or more days. However, this does not prevent businesses from entering into an agreement with an employee to extend the leave to more than 5 days.

Where employees provide notice to their employer that they are taking family and domestic violence leave, or if they provide evidence that the leave is being taken under permissible circumstances, the employer must take steps to ensure information concerning that notice or evidence is treated confidentially (as far as reasonably practicable).

Employers will need to provide new employees with the updated Fair Work Information Statement that details this leave.

When can employees access this entitlement? 

The changes are effective as of Tuesday 12 December 2018, so all employees now have an entitlement to 5 days’ family and domestic violence leave.

How can Russell Kennedy help?

If you have any questions about family and domestic violence leave or policies, please do not hesitate to contact Russell Kennedy’s Workplace Relations, Employment and Safety Team.

If you’d like to stay up to date with Workplace Relations insights, please sign up here.  

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