Family and domestic violence leave – a new Award entitlement

21 August 2018

Every four years the Fair Work Commission (FWC) reviews the Modern Awards that apply to a significant portion of Australia’s workforce. In 2017, the ACTU made a submission to the FWC as part of that process proposing that Family and Domestic Violence leave (FDV leave) be included in the Awards. Research indicates that family or domestic violence had a negative impact on their work for nearly 60% of women experiencing family or domestic violence.

Socially, it is desirable for employees (men and women) experiencing family or domestic violence, to disclose what is occurring and receive support, including from their employer. Employment plays a critical role in these situations as it can assist people to achieve independence from abusive relationships. FDV leave is one part of this process.

FDV leave is available to all employees covered by a modern Award (unless that Award does not apply as a consequence of an enterprise agreement or guarantee of annual earnings). FDV leave is for an employee who is experiencing family or domestic violence and who needs to do something to deal with the impact of that violence and it is impracticable for them to do that thing outside their ordinary hours of work, eg relocation, court hearings, accessing police services.

FDV leave is five days of unpaid leave, available in full at the commencement of each 12 month period (rather than accruing progressively throughout the year). For part time and casual employees, FDV leave is available in full and is not pro-rated. It does not accumulate each year. FDV leave does not count toward service but does not break continuous service. An employee is not obliged to use paid leave prior to accessing FDV leave. The employee should provide as much notice as practicable and an employer can require reasonable evidence of the leave being taken for family and domestic violence purposes. An employer must take reasonable steps to maintain the confidentiality of the notice and evidence information provided by the employee.

Although there is talk of FDV leave being included in the National Employment Standards in theFair Work Act so that it is available to all Australian employees, this has not yet occurred. Should this change occur, it will result in an update to the Fair Work Information Statement (FWIS) that an employer is required to provide to each employee at commencement of employment.

new version of the FWIS has recently been released so employers should ensure that the FWIS they are providing to new employees (or is embedded in their employment contracts) is the most recent version.