Family and Domestic Violence Leave

From 1 August 2018, all award covered employees are entitled to five days unpaid family and domestic violence leave.

Background

As part of the four yearly review of modern awards, the Australian Council of Trade Unions (ACTU) made a claim to provide all employees experiencing family and domestic violence with 10 days of paid leave.

On 3 July 2017, the Full Bench of the Fair Work Commission rejected the ACTU’s claim for paid leave, but expressed a preliminary view that unpaid leave should be available. On 26 March 2018, the Full Bench confirmed this view, deciding to provide five days unpaid leave to all award employees experiencing and needing to deal with the impact of family and domestic violence. In making its decision, the Full Bench said:

“Retaining employment is an important pathway out of violent relationships … Absent an entitlement to unpaid family and domestic violence leave, employees will be reliant on the goodwill of their employer.”

On 6 July 2018, the Full Bench delivered a decision finalising the content of the term for unpaid family and domestic violence leave to be inserted into all Modern Awards.

Further to that decision, on 27 July 2018, the Full Bench issued Determinations which vary all Modern Awards by inserting the approved term. The Determinations provide for the new entitlement to come into effect at the start of the first full pay period that commences on or after 1 August 2018.

The Determinations

The Determinations provide:

  • five days’ unpaid leave to deal with family and domestic violence for permanent and casual employees;
  • the leave is available if it would be impractical for the employee to deal with the impact of the family and domestic violence outside their ordinary work hours;
  • the five days is available at the start of each 12 month period of the employee’s employment and does not accumulate from year to year;
  • by agreement between the employer and the employee, the period of unpaid leave may be less than a day or more than five days;
  • the leave does not count as service, but does not break the continuity of service;
  • the employee must give notice of the leave as soon as practicable to the employer and advise the employer of the expected duration of the leave;
  • the employer may require evidence that would satisfy a reasonable person that the leave is being requested to deal with family and domestic violence;
  • employers must take steps to ensure that the notice and evidence of taking leave is treated confidentially.

Next Steps

Employers are not required to provide this new entitlement to non-award covered employees. However, now that a standard has been set, “employers of choice” are likely to follow, to the extent they have not already conferred an entitlement like this on their employees.

The Federal Government has foreshadowed legislation extending this entitlement to all employees in Australia covered by the Fair Work Act 2009.