Australia: New National Employment Standards entitlement to family and domestic violence leave

Last Updated: 17 January 2019
Article by Rachel Drew, Rose Sanderson and Allanah Griffiths

Most Read Contributor in Australia, May 2019

On 12 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (the Amendment Act) took effect. As a result, the Fair Work Act 2009 (Cth) was amended to provide employees with a new entitlement of five days' unpaid family and domestic violence leave as part of the National Employment Standards (NES). 

In August 2018, the Fair Work Commission included a new entitlement to unpaid family and domestic violence leave in 122 modern industry and occupation awards. See our previous article on the Award entitlements by clicking here. Until 12 December 2018, national system employees who were not covered by one of these modern awards could only take family and domestic violence leave if they were covered by an enterprise agreement with family and domestic violence leave entitlements, or at the discretion of their employer. 

The intended purpose of the entitlement is to:

  • provide invaluable support to employees who are experiencing family and domestic violence
  • introduce consistency in entitlements for employees governed by the national system, by extending the entitlement to all employees and not only those covered by a modern award. 

Kelly O'Dwyer, Minister for Jobs and Industrial Relations and Minister for Women, said this "historic change to the law will enshrine a minimum standard for family and domestic violence leave to all Australians covered by the Fair Work Act". O'Dwyer noted that employees "will be provided a universal safety net entitlement for workers under the Fair Work Act, regardless of the basis of their employment or the size of their employer". She reiterated that "Australians who need to take leave to deal with the impact of family and domestic violence will be able to do so in the knowledge that their job is protected".

What is family and domestic violence?

Family and domestic violence is defined 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. 

A close relative of the employee is a person who is:

  • a member of the employee's immediate family such as a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee, including former spouses or de facto partners
  • is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. 

What is the new entitlement and who does it apply to? 

The entitlement provides all employees five days of unpaid leave, on an annual basis, to deal with family and domestic violence if they are: 

  • experiencing family and domestic violence 
  • need to do something to deal with the impact of the family and domestic violence and it is impractical do so outside their ordinary hours of work. 

The Amendment Act provides examples of actions an employee may need to take to deal with the impact of family and domestic violence, which include: 

  • arranging for the safety of either themselves or a close relation (including relocation)
  • attending urgent court hearings 
  • accessing police services.

The entitlement extends to all employees, including part-time and casual employees, and is available in full at the commencement of each 12 month period, rather than on a pro rata basis. Unlike personal or annual leave, the entitlement does not accumulate from year to year. The recent amendments are not a reward for service (such as annual leave), but a needs-based entitlement. 

For casual employees and employees hired for a specific time or task, the employee's commencement date will be taken to be the date of their first engagement with their employer. 

Family and domestic violence leave can be taken by employees in separate periods of one or more days. Employees do not need to exhaust their paid leave entitlements before accessing family and domestic violence leave.  

How does the new NES entitlement affect the existing modern award entitlement to unpaid leave?

The modern award entitlement is for the same amount of leave as the new entitlement in the NES. 

This means that for all employees covered by industry and occupation awards, the amount of the entitlement hasn't changed. However, the recent changes mean that all employees now have access to this leave entitlement, regardless of whether they're covered by an award or not. 

Notice to employer and evidence to be provided

If family and domestic violence leave is taken, employees must give notice to their employer that they are taking leave and provide evidence, where requested by the employer, that would satisfy a reasonable person that the leave is being taken under permissible circumstances. 

Examples of evidence an employee may provide to their employer to satisfy that leave is being taken under permissible circumstances include documentation issued by the police service, documents issued by a court or family violence support service or a statutory declaration. 

Employer's duty concerning confidentiality

As far as reasonably practicable, employers must take steps to ensure information concerning any notice or evidence an employee has provided in connection with the leave is treated confidentially. Employers are not prevented from disclosing information if it is:

  • required by law
  • necessary to protect the life, health or safety of the employee or another person. 

Information or evidence relating to family and domestic violence provided by the employee to an employer should be kept highly confidential.  Disclosing the information or evidence on an improper basis is likely to distress the employee and may cause significant issues.

Effect on unfair dismissal and adverse action claims

Employers ought to exercise caution in relation to dismissals involving an employee who may be experiencing family and domestic violence. For example, an employer who is aware that absenteeism is due to family and domestic violence may have difficulty in ensuring that any dismissal is not harsh, unjust or unreasonable for the purpose of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth). 

Failure to comply with the recent amendment  

An employer's failure to provide family and domestic violence leave is a breach of the NES and of a civil remedy provision. Serious contraventions may attract a maximum penalty of ten times the amount of the maximum penalty otherwise applying to a contravention. 

Key takeaway for employers

Employers should update their workplace policies to ensure that the entitlement to family and domestic violence leave is appropriately communicated to employees. We recommend that an email is circulated to employees, containing the updated policy.

If your organisation has leave or payroll software, a new category of family and domestic violence leave may need to be included.  Employers must ensure that access to such a system is limited, to prevent other employees from having access to any information or evidence relating to the required leave.

Employers must treat all circumstances surrounding the leave in a confidential manner, unless an exception detailed above applies.

Support services for those impacted by family and domestic violence

If you, or anybody you know is being impacted by family or domestic violence the following services can offer assistance: 

  • 1800RESPECT – Ph: 1800 737 732
  • Lifeline – Ph: 13 11 14

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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