Family and domestic violence leave
The Fair Work Commission has introduced family and domestic violence leave provisions into all federal awards, effective from the August 1, 2018.
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 that employee and that causes them harm or to be fearful.”
A family member is defined as:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Entitlement to the leave
All employees are entitled to five days of unpaid leave to deal with the impact of family and domestic violence where it is impractical for the employee to do this outside of their ordinary hours or work. This may include activities such as making arrangements to relocate, attend court hearings, access police services or make arrangements for their own, or their family members’, safety for example.
Rather than accruing progressively like annual and personal leave, family and domestic violence leave is available in full at the start of each 12-month period of an employee’s employment. For existing employees at August 1, 2018, a full five days will be accessible.
This will refresh on the individual employee’s employment anniversary date. For new employees that commence employment after 1 August 2018, they will be entitled to the full five days from the commencement of their employment.
Family and domestic violence leave does not accumulate from year to year and is available to part-time and casual employees, in full.
Employers may choose to offer more than 5 days unpaid leave or grant a paid entitlement. If a business chooses to grant a more beneficial entitlement, it is recommenced that this be outlined in a policy.
Taking of the leave
If the employer and employee so agree, a period of leave to deal with family and domestic violence may be less than a full day. Time spent accessing unpaid family and domestic violence leave will not count as service but will not break service. Employees do not have to exhaust other types of leave before accessing family and domestic violence leave.
Employees are required to give notice of the leave and advise their employer of the expected period of the leave as soon practical, which may be a time after the leave has started. Evidence that would satisfy a reasonable person is required to be provided by the employee if it is requested by the employer. Employers must, insofar as is practicable, maintain confidentiality regarding any information or evidence provided regarding the leave.
How will enterprise agreements provide for paid or unpaid leave to deal with family and domestic violence?
Existing enterprise agreements, as well as enterprise agreements that were lodged for approval prior to August 1, 2018 (and that are subsequently approved) will not be required to provide for family and domestic violence leave.
This is provided all employees of the business are covered by such enterprise agreements. In such instances, employers may wish to grant the entitlement through a policy. Those businesses that are currently negotiating enterprise agreements will need to include family and domestic violence leave provisions in their agreement that are at least as beneficial as those contained in any underpinning modern award.
Is a day for a part time or casual employee a 7.6-hour day? Or is a day based on their hours ordinarily worked? I.e. If a part time employee works five hours a day, is a day five hours for the purposes of taking family and domestic violence leave?
A day is based on the individual employee’s ordinary hours of work. In the above example, a day would constitute five hours.
If a part time or casual employee works, for example three days per week, do they still get five days at their ordinary hours? Or do they get however many days they would work in a standard seven-day week, Monday to Sunday?
The employee will be entitled to the full five days at their usual hours. In the above example they would be entitled to 5 days of 3 hours on each day.
At what point is the five-day entitlement available for existing employees, given the provision states it is available at the start of each 12-month period of
the employee’s employment? Is it available from 1 Aug 2018 for existing staff or do they have to wait until their employment anniversary date to be able to access the leave?
Existing staff will be entitled to access a full five days from the first full pay period on or after August 1, 2018. The five-day entitlement will refresh on their anniversary of employment. This means that if an employee commenced with the business on June 1, 2018, they would be entitled to access five days of leave from the first full pay period after August 1, 2018. Their five-day entitlement will then refresh on June 1, 2019 when they will be eligible to access a full five days again. This entitlement will then refresh each year on June 1 thereafter.