Inclusion of Domestic Violence Leave in the NES

Up until 12 December 2018, only national system employees covered by a modern award had access to take unpaid leave to deal with the impact of family and domestic violence.

Parliament have now passed the Fair Work Amendment (Domestic and Family Violence Leave) Act 2018 which further extends this entitlement to all national system employees including award and agreement free employees as well as casual employees, effective 12 December 2018.

The Fair Work Amendment (Domestic and Family Violence Leave) Act 2018 provides for unpaid family and domestic leave entitlements to form part of the National Employment Standards (NES) within the Fair Work Act 2009. The entitlement provides an employee with 5 days of unpaid leave, available in full at the commencement of each 12-month period of employment. The entitlement does not accrue from year to year, unlike with annual leave or personal leave.

Current employees who have accessed some or all of their family and domestic violence leave under a modern award will, upon introduction of the provisions into the NES, be entitled to a ‘top up’ of 5 days unpaid family and domestic leave. If a current award covered employee has not accessed any of their entitlement no change is necessary.

If an employer has a current in-term enterprise agreement and discovers that the new provisions in the NES create difficulty in the operation of that agreement, they can apply to the Fair Work Commission to vary the agreement provisions.

Employers should be aware that they are obligated, as far as is reasonably practicable, to keep any information in relation to an employee’s claim for family and domestic violence leave confidential. Civil penalties of up to $64,000 may be imposed should an employer contravene the new family and domestic violence leave provisions.

Like to know more?

CCIWA’s Employment Forms Guide contains a range of information about family and domestic violence leave and contains a pro-forma family and domestic violence leave policy as well as a copy of the updated Fair Work Information Statement.

For more information, contact our Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].

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