Following a recent FWC Full Bench Decision (See:  FWCFB 3936) all employees who are covered by an industry or occupation modern award (including part time and casual employees) may now take to up to 5 days of unpaid leave to deal with family and domestic violence (Family and Domestic Violence Leave) per each 12 month period.
The entitlement commences in full at the commencement of each 12 month period. Part time and Casual employees may take the full 5 days of Family and Domestic Violence Leave; the entitlement will not be pro-rata.
Family and Domestic Violence Leave is in addition to existing leave entitlements such as paid personal/carer’s and paid annual leave. Unlike some other leave entitlements, however, Family and Domestic Violence leave is unpaid and also does not accumulate from year to year.
Importantly, the new award-based entitlement does not apply to employees who are:
- covered by Enterprise awards;
- covered by State reference public sector awards;
- covered by enterprise and other registered agreements; or
- not covered by an industry or occupation modern award (such as award-free employees).
What is Family and Domestic Violence Leave?
Under the model clause, all employees covered by an industry or occupation modern award (including casual employees) may now take to up to 5 days of unpaid leave to deal with family and domestic violence where it is impractical for the employee to do so outside of their ordinary hours of work.
This may include things like:
- making arrangements for their safety or the safety of a family member (including relocation);
- attending urgent court hearings; or
- accessing police services.
The term family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.
The term family member is defined broadly to include:
- a spouse, de facto partner (including a former spouse or de facto partner), child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
An employee wishing to take Family and Domestic Violence Leave must give notice to their employer of the taking of leave as soon as practicable (which may be after the leave has started). If required by the employer, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose of dealing with family and domestic violence.
What about confidentiality?
Under the model clause, employers have an obligation to take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided in relation to Family and Domestic Violence Leave is treated confidentially, as far as it is reasonably practicable to do so.
However, an employer may disclose information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.
Employers are also encouraged to consult with employees regarding the handling of this information concerning Family and Domestic Violence Leave.
How do I ensure my business is compliant?
Although the change is unlikely to have an immediate impact, employers must ensure they are aware of the new entitlement and understand their obligations.
In addition to understanding the circumstances in which an employee may take Family and Domestic Violence Leave, employers should also be aware that employees will be protected against any form of adverse action they experience as a result of exercising their workplace right to take Family and Domestic Violence Leave.
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