On 12 December 2018, the Fair Work Act 2009 (Cth) was amended to include an entitlement for unpaid family and domestic violence leave as part of the National Employment Standards (NES).
Formerly, only employees covered by a Modern Award were entitled to unpaid family and domestic violence leave.
All employees (including part-time and casual employees) are entitled to 5 days of unpaid leave to deal with family and domestic violence regardless of whether they are covered by a Modern Award or not.
The leave is available in full at the start of each 12 month period of the employee’s employment and does not accumulate from year to year.
An employee may take unpaid family and domestic violence leave as a single continuous 5 day period or separate periods of one or more days each.
By agreement between the employee and the employer:
- the period of leave may be taken in less than a day; or
- the employee may take more than 5 days unpaid leave.
Family and Domestic Violence
Family and domestic violence means “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 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
- is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
A reference to a spouse or de facto partner includes a former spouse or de facto partner.
An employee may take unpaid family and domestic violence leave if the employee:
- is experiencing family and domestic violence; and
- needs 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 the employee’s ordinary hours of work.
Reasons for taking leave may include making arrangements for the employee’s safety or the safety of an employee’s close relative (including relocation), attending urgent court hearings or accessing police services.
Notice and Evidence
Notice must be given by an employee to their employer:
- as soon as practicable (which may be a time after the leave has commenced); and
- advising of the period or the expected period of the leave being taken.
If an employee has given notice, an employer may require and the employee must give evidence to their employer which would satisfy a reasonable person that the employee is taking leave to deal with family and domestic violence.
If an employee does not comply with the notice and evidence requirements, the employee is not entitled to take the leave.
Employers must take steps to ensure that any information, notice and/or evidence received from an employee is treated confidentially (as far as is reasonably practicable to do so).
If required by law or to protect the life, health or safety of the employee or another person, an employer may disclose the information, notice and/or evidence given to it by an employee.
Considering the significant impact of this entitlement, it is important for employers to understand their obligations and for employees to understand their rights.
Our Murdoch Lawyers in Toowoomba can assist employers and employees with all aspects of employment, including entitlements and the application of the NES.