The model Family and Domestic Violence (FDV) Leave terms are incorporated into all Modern Awards as of 1 August 2018.

This means that Award covered employees may take unpaid leave to deal with FDV matters from 1 August 2018.

What is the FDV entitlement?

Award covered employees are entitled to five days of unpaid FDV Leave per annum.

FDV means violent, threatening or other abusive behaviour by an employee's family member that:

  • seeks to coerce or control the employee; or
  • causes them harm or fear.

Employees are entitled to take FDV Leave if they need to deal with the impact of FDV and it is impractical to do so outside their ordinary hours of work.

FDV Leave is available to employees (in full) at the start of each 12 month period of the employee's employment (ie. it does not accrue incrementally throughout the year).

FDV Leave does not accumulate from year to year and is available in full to part time and casual employees (ie. not pro-rated). Employees are not required to utilise other available paid leave before accessing FDV leave, but they may elect to utilise paid personal leave to attend to FDV matters.

Which employees have access?

The entitlement applies to employees (including casual employees) who are covered by a Modern Award. The FDV Leave entitlement does not apply to employees who are:

  • covered by Enterprise Awards;
  • covered by State Reference Public Sector Awards;
  • covered by Enterprise and Other Registered Agreements; and
  • award and agreement free.

Applicable instruments may of course be amended to reflect the Modern Award position regarding FDV Leave.

What notice and evidence is required from an employee wishing to take FDV Leave?

Employees are required to give notice as soon as practicable (which may be given after the leave has started and advise the employer of the expected period of the leave.

Employees may be required by their employer to provide evidence that would satisfy a reasonable person that the leave being taken is for the purpose of FDV and this may include a document issued by the police, a court or family violence support service or a statutory declaration.

What should you do as an employer?

  • If you have Award covered employees, review your leave policy and employment contracts to deal with FDV Leave terms;
  • Establish procedures for managing FDV Leave, to ensure compliance with the notice, evidentiary and confidentiality terms contained in the Modern Awards.

Further legislative changes ahead...

The Federal Government has indicated that it will introduce legislation as soon as possible "to amend the Fair Work Act to incorporate this new leave provision, in line with the final model clause issued by the Fair Work Commission on 6 July 2018". This means that it will soon apply to all workers as part of the National Employment Standards, so its worth considering as an employer to make FDV available to all employee under your current leave policy now, in anticipation of the change in legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.