Jacquie Seemann and David Chen

New family and domestic violence leave entitlements: is your business up to date?

Jacquie Seemann and David Chen

13 December 2018

Award Conditions Employment Contracts

Increasingly, Australian society as a whole is seeking to address the issue of domestic violence. That effort has now reached the world of employment regulation, with employers being required to provide additional support to employees who are victims of domestic violence.

There have been two significant regulatory developments:

  • First, as of 1 August this year1, the FWC Full Bench varied modern awards by introducing an entitlement of five days’ unpaid family and domestic violence leave (FDV leave) per year.
  • In a relatively quick response, on 6 December 2018, the Morrison Government passed the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, which enshrines the right to take up to five days’ unpaid FDV leave per year in the National Employment Standards. This is significant, as the NES has a wider coverage than awards – and thus extends the benefit to the overwhelming majority of Australian employees. The Bill took effect on 12 December 2018.

Both the award clause and the new law define family and domestic violence as violent, threatening or other abusive behaviour by a close relative of an employee that:

  • seeks to coerce or control the employee; and
  • causes the employee harm or to be fearful.

The employee may take FDV leave if:

  • the employee is experiencing family and domestic violence;
  • the employee needs to do something to deal with the impact of the family and domestic violence; and
  • it is impractical for the employee to do that thing outside ordinary hours of work.

Unlike some other types of leave, FDV leave:

  • is available in full at the start of each 12 month period of an employee’s employment – it does not accrue over the course of the year;
  • does not accumulate from year to year; and
  • is available in full to part-time and casual employees, not pro-rata.

As well as these unpaid leave entitlements, some employers are now providing more generous, including paid, entitlements. For example, from 1 January 2019, the NSW Government will introduce 10 days of paid FDV leave per year for the state’s public sector employees. Similarly, Aldi has introduced a family and domestic violence policy providing 10 days’ paid leave per year for full and part-time employees (casuals can take 10 days’ unpaid leave) plus a one-off payment of $250 for incidental expenses, support services, assistance changing work location if requested, and (where possible) access to other leave entitlements for FDV purposes.

All employers need to understand the impact of the new NES and award entitlements. You might choose to make reference to FDV leave in your policy and/or contracts – but in any case you will need to consider how to implement the entitlements in practice, and whether there is any additional support you could and wish to provide.

If you require assistance to address any aspect of FDV leave, including reviewing your policy and/or contracts to ensure they accurately reflect the law, please contact a member of our Employment and Safety team.

14 yearly review of modern awards – Family and Domestic Violence Leave [2018] FWCFB 1691