New family and domestic violence leave entitlements from Fair Work Australia

The Fair Work Commission has introduced provisions targeting family and domestic violence, with new leave entitlements granted across all industry and occupation awards. The new clause applies from the first full pay period on or after 1 August 2018 and allows employees to take five days unpaid leave to deal with the impact of family and domestic violence.

What is family and domestic violence?

Family and domestic violence is threatening, controlling, or abusive behaviour that places a person in a position where they feel unsafe or fearful. To access the new leave entitlements, the behaviour could come from an employee’s family member who seeks to intimidate or control the employee, and causes them harm or fear.

A family member can include a husband or wife, de facto partner or former de factor partner, child, parent, grandparent, grandchild or sibling. An employee’s current or former partner or de facto partner’s child, parent, grandparent, grandchild or sibling is classified as a family member. Additionally, any person related to the employee pursuant to Indigenous or Torres Strait Islander kinship rules is also considered a family member.

For employees

All employees (permanent and casual) covered by a modern award (i.e. an award that is industry or occupation-based) will be affected by the new clause and will be entitled to five days unpaid family and domestic violence leave.

Employees covered by enterprise or state reference public sector awards or by enterprise or other registered agreements, are not entitled to the new unpaid family and domestic violence leave entitlements. However, these employees may be entitled to other paid or unpaid entitlements under their award or agreement which they may be able to access in these circumstances.

The modern awards can be found on the Fair Work Australia website, and an overview of all awards can be found here.

The five-day leave entitlement will be renewed every 12 months from the day an employee begins work, however, it will not accumulate from year to year.

For businesses

As a business owner, it’s important to consider the impact of the new leave entitlements and to be aware of any existing workplace policies that may cover or be affected by the new award family and domestic violence leave entitlements.

If existing workplace policies provide less than the minimum five-day award leave entitlement, the award entitlement will apply. The award entitlement will apply even if the employment contract or workplace policy does not cover for family and domestic violence leave.

As an employer, you are entitled to ask the employee for evidence to demonstrate the employee took leave to deal with family and domestic violence. If the employee does not produce sufficient evidence to support the leave, the leave may not be granted by the employer. Evidence can include documents issued by the police service, documents issued by a Court, a doctor (including a medical certificate), district or maternal and child health care nurse, a lawyer, family violence support service documents, or a statutory declaration.

Need further information?

If you wish to know more about how the Fair Work Commission leave entitlement will impact you or your business, please do not hesitate to contact our office on (07) 3210 2373.

Renee Pappagallo 15/08/2018

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.