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New Unpaid Family and Domestic Violence Leave Entitlements Introduced

Employees covered by an industry or occupation award are now entitled to five days of unpaid leave each year, following a recent review of modern awards by the Fair Work Commission. 

A model clause is now included in all industry and occupation awards, and applies from the first full pay period on or after 1 August 2018. The entitlement does not apply to employees covered by enterprise awards, State reference public sector awards, enterprise or other registered agreements, or award and agreement free employees. 

The entitlement applies to all employees, including casual employees, and is not pro-rated for part-time and casual employees. 

Employees are entitled to five days unpaid leave each year to deal with the impact of family and domestic violence where they cannot do so outside of their ordinary hours of work. Employees may seek to take family and domestic violence leave to make arrangements for their safety, or the safety of a family member, attend court hearings or access police services. 

Family and domestic violence means violent, threatening or other abusive behaviour by an employee's family member that seeks to coerce or control the employee, or causes them harm or fear. 

This leave does not accrue over time or accumulate from year to year. Family and domestic violence leave does not break an employee's period of continuous service, but will not count as service when calculating entitlements such as long service leave. Employers may also consider allowing an employee to take more than five days leave in a year, or to make arrangements for flexible working conditions. 

Employees seeking to take family and domestic violence leave must notify their employer as soon as possible, and tell the employer how long they expect the leave to last. Employers can ask for evidence that would convince a reasonable person that the employee took the leave to deal with family and domestic violence, and a failure to provide evidence may result in the leave not being authorised. Employers can ask for the employee to provide evidence for as little as one day (or less) of absence. 

Employers should be aware that family and domestic violence is a sensitive subject, and should work with their employees to ensure that information is handled appropriately and confidentially.

Copyright 2019 K & L Gates


About this Author

Duncan Fletcher, KL Gates, Australia, industrial relations lawyer, labor regulation attorney

Mr. Fletcher has been working with clients in the practice area of labour, employment and workplace safety for more than 15 years. He has expertise in industrial relations and labour regulation, individual employment relationships and contracts, preparation and enforcement of workplace policies and procedures, equal opportunity, discrimination, harassment, workplace safety and training. Based in Perth, Duncan has worked on matters throughout Australia.

He has been involved in large scale industrial relations and employment litigation and in the...