The Fair Work Commission has recently issued a model clause to form part of all modern Awards in respect of unpaid domestic violence leave. The clause applies to all employees, regardless of casual, part-time or full-time status that are covered by an industry or occupation Award (known as “modern Awards”). It will not apply to employees covered by Enterprise Awards, State public sector Awards, Registered Agreements or Award free employees. The inclusion of this additional entitlement arose from the Commission’s four-yearly review of all modern awards. The change took effect from the first full pay period on or after 1 August 2018.
As a result of the change, all modern Award employees will be entitled to five (5) days of unpaid domestic violence leave annually. The 5 days of unpaid leave will renew at the beginning of every 12 months, can be taken in full or in parts (including a part day) during the 12 month period but will not accumulate from year to year.
Employees covered by the change will now be entitled to take unpaid leave to allow them to deal with:
- family and domestic violence that they may be experiencing; or
- ancillary matters arising from the impact of domestic or family violence, which would be considered impractical to attend to outside of an employee’s ordinary working hours (for example, attending a Court hearing).
Under the changes, “family and domestic violence” has been defined broadly to include behaviour which is:
- threatening, violent or otherwise abusive by a family member, causing an employee to be fearful; or
- behaviour that seeks to control or coerce an employee.
A wide definition of a “family member” has also been adopted to include:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
To obtain access to the leave, an employee is required to give their employer notice of the leave as soon as possible (in some urgent cases it may not be possible for the employee to give notice until after the leave period has started). Additionally, if the employer requires, an employee must give evidence to satisfy a reasonable person as to the bona fide nature of the domestic violence leave. Employers are obliged to take reasonably practicable steps to keep confidential the information provided by employees. Disclosure by employers is possible, but only where required by law or where necessary for the protection of the safety, life and health of employees or other persons.
Key Take Outs
Employers need to be aware of the introduction of unpaid domestic violence leave into all modern Awards, the rights of employees to obtain up to 5 days unpaid leave every year and the processes and procedures which must be followed in relation to such leave.
There is also the potential for further legislative changes in this area with the Commonwealth government pledging to amend the Fair Work Act (2009) to extend unpaid domestic leave to all other employees not covered by modern Awards, the Labor Party being committed to an additional National Employment Standard mandating 5 days of paid domestic violence leave per year and the union movement pushing for 10 days of paid domestic violence leave per year.
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