Knowledge

16 August 2018

Family and domestic violence leave entitlements

On 1 August 2018, the FairWork Commission introduced unpaid domestic and family violence leave into all Modern Awards.

The move is seen as a significant step forward in addressing the prevalence of domestic violence in society, and providing assistance for those who need it most.

According to the Australian Institute of Health and Welfare, one woman is killed each week, and one man each month by a partner or former partner.

The determination by the FairWork Commission, which modifies the Modern Awards, was made on 1 August 2018. The changes therefore take effect with the start of the first full pay period that starts on or after that date.

The changes introduce an entitlement to 5 days’ unpaid leave to deal with family and domestic violence.

What is family or domestic violence?

Family and domestic violence is defined as violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee, and that causes them harm or to be fearful.

Family member is given a broad meaning and includes:

  1. a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
  2. a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

Note:  A reference to a spouse or de facto partner also includes a former spouse or de facto partner.

Entitlement to leave

There are a number of important points to note about the leave entitlement:

  1. the leave is available to all employees, including those employed on a casual basis;
  2. the whole of the leave (5 days) is accrued at the start of a twelve month period.  That is to say, the entirety of the leave is available to an employee on their first day of work; and
  3. the leave does not accumulate from year to year. At the start of each 12 month period the amount of leave resets to 5 days.

Taking leave

The circumstances in which the leave may be taken are as follows:

  1. the employee is experiencing family and domestic violence; and
  2. the employee 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 their ordinary hours of work.

By way of explanation, the FairWork Commission added that the reasons for which an employee may take unpaid leave include:

  1. making arrangements for their safety, or the safety of a family member;
  2. attending urgent court hearings; or
  3. accessing police services.

These are however only guidelines and do not represent the full extent of circumstances in which the leave may be taken.

In addition to meeting the requirements above, under the changes employees are also required to provide sufficient evidence to their employer that the leave was taken for the correct reasons.

Depending on the circumstances, such evidence may include a document issued by the police, a court, or even a statutory declaration.

Employees will also need to provide notice to their employers as soon as is practicable of the leave and advise of the expected period of leave.

The determination by the FairWork Commission states notice may be provided after the leave has begun where it is appropriate in the circumstances.

Final thoughts

These changes to the Modern Awards represent progress in addressing some domestic violence issues.  The largest point of debate so far has been whether the measures go far enough.  That is not for us to decide.

It is important however, to remember that currently these changes only apply to the Modern Awards, so only employees and employers using those awards are affected.

Will this change?  No one can be certain.  Both the current government and the Labor party have identified that they would like changes made to the Fair Work Act which would see all employees able to access the family and domestic violence leave.  Until the legislation is finalised however, we wouldn’t count on anything.

In the meantime, those employers and employees who are bound by the Modern Awards should make sure they are aware of their rights and obligations after the changes, and identify the pay period and date when they come into effect.

Finally, domestic violence affects not only those who are victims, but also those who are exposed to it.

If you feel you need to contact someone, 1800RESPECT is a national service that provides confidential information, counselling and support services on a 24-hour basis. They are available to everyone.  Not only victims but also those exposed to, or at risk of family and domestic violence. (Phone: 1800 737 732)

Please remember, if you or someone you know is in imminent danger you should contact the police immediately on 000.

If you have any questions about this article, or other enquiries related to employment matters, please do not hesitate to contact us.

AJ

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