Commencing from 1 August 2018, all employees who are covered by a modern award are entitled for up to 5 days of unpaid leave to deal with family and domestic violence.
This follows the Fair Work Commission's Decision made on 6 July 2018 which finalised the model clause for 5 days of unpaid leave after consultation with stakeholders including the Australian Council of Trade Unions, despite submissions for an introduction of a period of 10 days paid leave.
All modern awards were subsequently amended by the FWC determinations issued by the Full Bench on 27 July 2018, with the amendments having taken effect from 1 August 2018. The Federal Government have indicated that they plan to extend this leave entitlement to all non-modern award workers under the Fair Work Act 2009, however this has yet to occur at the time of the writing of this article.
We have outlined the key features of the family and domestic violence leave that employees and employers should be aware of.
Employees should note the following:
- Employees may only apply for leave if they need to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work. This expressly includes making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
- An employee is deemed to be experiencing family and domestic violence if they are being subject to, 'violent, threatening or other abusive behaviour by a family member ... that seeks to coerce or control the employee and that causes them harm or to be fearful'.
- An employer may request evidentiary proof from the employee regarding the leave. This may include a document issued by a police service, a court or a family violence support service, or a statutory declaration. All information must be kept confidential by the employer.
Employers should note the following regarding this new type of leave:
- This unpaid leave extends to any employee including casual workers as well full time workers covered under a modern award. Employees who provide sufficient notice and evidence of their need for domestic violence leave should not suffer any adverse consequences from their employer. Otherwise, the employee may be entitled to commence an adverse action claim and seek compensation.
- Employers must treat any information relating to any notice or evidentiary proof provided by the employee as confidential. It is advisable that employers have a policy to ensure that such documents and correspondence are not disclosed to other employees or persons as far as practicable. It is recommended that employers consult with the employee on how their information is to be handled and kept confidential.
- An employee is deemed to have given sufficient notice if it is given as soon as practicable (which may be before or after the leave has started) and advises the employer of the period or expected period of leave. Further evidentiary proof can then be requested by the employer after notice has been received.
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.