Family and domestic violence leave: What all Australian businesses need to know about the new entitlements

In March 2018, the Full Bench of the Fair Work Commission determined to introduce an entitlement to five days of unpaid leave for family and domestic violence reasons for all award-covered employees.

From 1 August 2018, all modern awards were varied to insert the model term giving effect to this new entitlement.

What is the entitlement?

All modern award-covered employees, including casual employees, now have an entitlement to five days of unpaid leave to deal with family and domestic violence. The leave may be accessed in single days, in one whole period or, by agreement, for a period of less than a day. Further, an employer and employee may agree that an employee can take more than five days’ unpaid leave.

The leave entitlement is available in full and immediately every 12 months of service (that is, it does not accrue throughout the year) but employees cannot accrue the leave from year to year.

This unpaid leave may be taken by an employee if they are experiencing family and domestic violence and need to deal with the impact of family and domestic violence in circumstances where it is impractical for the employee to do so outside of their ordinary hours of work. Examples of reasons given in the model term for accessing the leave include attending to urgent court hearings or making arrangements for their safety or the safety of a family member.

A family member is defined to mean:

• a current or former spouse or de facto partner of the employee;
• a 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.

Notice and evidence requirements

An employee wishing to access this leave must, as soon as practicable, give notice to their employer. This notice may be given after the leave has started. The employee is also to advise the employer how long they will be on leave or are expected to be on leave.

If required by the employer, the employee must give evidence that would satisfy a “reasonable person” that the leave was taken to deal with family and domestic violence. This evidence may include police or court documents or a statutory declaration.

The model term requires employers to take steps “as far as it is reasonably practicable” to ensure that the notice and evidence given is treated in a confidential manner. The model term notes that any information provided by an employee about family and domestic violence is sensitive in nature.

Acknowledging the difficult position this poses for employers, the model term provides that employers should consult with such employees regarding how such information is to be handled given the employers’ legal duties and obligations in relation to ensuring the health and safety of all their employees.

Importantly, however, employers are not prevented from disclosing such information if the disclosure is required by law, or is necessary to protect the life, health or safety of the employee or others (including fellow employees).

Considerations for employers

When placed on notice about domestic violence issues, employers have the delicate task of balancing care and support for the affected employee as well as protecting the health and safety of all of their employees where there is the risk that the violence or domestic issue may find its way into the workplace.

For example, the partner of the employee attending the workplace seeking out the employee and threatening or actually doing harm (causing injury or death) to that employee and/or fellow employees (sadly an all too familiar news story in modern times).

Employees and managers should be advised, by way of a training and a workplace policy, of the process to be followed to request/access this leave as well as how issues of confidentiality will be balanced with safety obligations to all employees.

Employers should also arrange for training to be provided to managers so they are equipped to handle requests for this type of leave on both a practical and emotional level.

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