New Family and Domestic Violence Leave

14 December 2018

Fair Work has announced new leave entitlements in Awards, applicable from 1 August, 2018, and new entitlements under the National Employment Standards, applicable from 12 December, 2018.

The Fair Work Commission has announced that all modern industry awards (including the Architects Award) will be varied to give employees access to 5 days of unpaid leave per year to deal with family and domestic violence. The new clause will be applicable from the first full pay period on or after 1 August 2018.

The Fair Work Commission defines family and domestic violence as “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”.

The leave can be taken by employees if they need to deal with the impact of family and domestic violence and it’s not possible to do so outside their ordinary hours of work.

For example, this could include:

  • making arrangements for their safety, or safety of a family member (including relocation)
  • attending court hearings, or
  • accessing police services.

The leave doesn’t need to be taken all at once and can be taken as single or multiple days. An employer and employee can also agree for an employee to take less than 1 day at a time, or for the employee to take more than 5 days.

Unpaid family and domestic violence leave doesn’t break an employee’s period of continuous service but doesn’t count as service when calculating accumulated entitlements such as paid leave.

The entitlement applies to all employees (including casuals) who are covered by an industry or occupation based award.

For more information about domestic and family violence leave and who it applies to, see the Fair Work Ombudsman website.

Employers may ask their employee for evidence that they require the leave to deal with the impact of family or domestic violence. If the employee does not provide evidence, they may not receive the requested leave. For more on evidence requirements, see the Fair Work Ombudsman website.

Employers should be mindful that information relating to an employee’s situation regarding family and domestic violence may be extremely sensitive, and should be kept confidential. This includes information about the leave request and any evidence they may provide. Employers may disclose information if it’s required by law, or it’s necessary to protect the life, health or safety of the employee or another person.

For more on workplace privacy, obligations about providing information to third parties, and privacy in relation to email and the internet, read the Fair Work Ombudsman Workplace Privacy Best Practice Guide.

National Employment Standards

On 12 December, 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 took effect. This added Family and Domestic Violence Leave to the National Employment Standards (NES). This means that all employees (including part-time and casual employees) have access to this leave entitlement, regardless of whether they’re covered by an award or not.

Further information

The Fair Work Ombudsman website section on Family and Domestic Violence Leave includes informayion on eligibility, the new NES entitlement and workplace policies.