Family and domestic violence leave now an entitlement under the Fair Work Act

The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) takes effect today after it received Royal Assent by the Governor-General on 11 December 2018.

The new legislation includes the right to take up to five days’ unpaid family and domestic violence leave in the National Employment Standards (NES) – the minimum employment entitlements prescribed by the Fair Work Act 2009 (Cth).

It comes after a decision by the Fair Work Commission in July this year to provide unpaid family and domestic violence leave entitlements to all employees covered by an industry or occupation award.

What are employees entitled to under the new laws?

The new unpaid family and domestic violence leave entitlement in the NES can be summarised as follows:

• All employees (including casual employees) are entitled to five days of unpaid family and domestic violence leave in a 12 month period.
• The leave is available in full at the start of each 12 month period of the employee’s employment but does not accumulate from year to year.
• Employees may take the leave as a single continuous five day period or separate periods of one or more days each, as well as periods of less than one day.

When can an employee take family and domestic violence leave?

Employees can access the new leave entitlements if they satisfy all of the following conditions:

• The employee is experiencing family and domestic violence.
• The employee needs to do something to deal with the impact of the family and domestic violence.
• It is impractical for the employee to do that thing outside the employee’s 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.

A close relative is a person who is a member of the employee’s immediate family including a spouse, de facto partner, child, parent, grandparent, grandchild or sibling. It also includes a person who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

How can an employee take family and domestic violence leave?

Employees will be required to comply with the same notice and evidence requirements that apply to personal/carer’s and compassionate leave in the NES.

This means that employees that seek to access family and domestic violence leave will be required to give their employer notice of the taking of the leave as soon as practicable and must also advise their employer of the period (or expected period) of the leave.

Employers are also required to take steps to ensure information concerning any notice or evidence an employee has given for the taking of family and domestic violence leave is treated confidentiality, as far as is reasonably practicable to do so.

What do employers need to do?

We suggest that employers update their employment agreements and leave policies to include clauses that provide for the new minimum family and domestic violence leave entitlements.

If your employment agreements and leave policies need to be refreshed to reflect the new legislative changes, please contact us as we would be happy to assist.

This article was written by Callum Gribbin, Solicitor, and Sam McIvor, Partner