Five days’ unpaid family and domestic violence leave to be inserted into the National Employment Standards

On 6 December 2018, the Federal Government passed the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018.

The passage of the Bill will see the inclusion of the right to take up to five days’ unpaid family and domestic violence leave in the National Employment Standards (NES) as of 12 December 2018.

What new entitlements are to be provided by the unpaid family and domestic violence leave?

An employee may take unpaid family and domestic violence leave under the NES where:

• they are experiencing family and domestic violence
• they need 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 their ordinary hours of work.

This might include taking leave to make safety arrangements for themselves or a family member (including relocation), attending urgent court hearings, or accessing police services.

The NES defines family and domestic violence as ‘violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and that causes the employee harm or to be fearful’.

A close relative of the employee includes:

• a member of the employee’s immediate family (e.g. a spouse, de facto partner or parent etc. of the employee or the employee’s spouse or de facto partner)
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

The entitlement has the following features:

• no minimum length of service is needed before the employee is entitled to the leave
• 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
• the leave can be taken by full-time, part-time or casual employees
• the leave can be taken as part-days, and an agreement can be reached with an employer for more than five days’ leave
• an employee must give their employer notice of their intention to take the leave and provide evidence, where requested, that would satisfy a reasonable person that the leave is taken for the purpose specified
• employers must take steps to ensure information concerning any notice an employee has given, or any evidence an employee has provided, in connection with the leave is treated confidentially, as far as reasonably practicable.

The entitlement will also apply to employees whose employment started before the commencement of the unpaid family and domestic violence leave under the NES. In this case, the 12 month period starts on the date of assent and ends 12 months after the date of assent.

If you would like to discuss the implications of unpaid family and domestic violence leave on your business, please contact our workplace relations and safety partners, Belinda Winter, on belinda.winter@cgw.com.au, or (07) 3231 2498 or Annie Smeaton, on annie.smeaton@cgw.com.au or (07) 3231 2946.