Employers need to be aware of a new award-based leave entitlement which has recently come into effect for the purpose of allowing employees unpaid absence from work to deal with family and domestic violence. Background As part of its four year review of modern awards, earlier this year the Fair Work Commission (Commission) considered an application by the Australian Council of Trade Unions to insert into all modern awards an entitlement to take 10 days’ paid leave per year to deal with domestic violence. The outcome of those proceedings was a decision by the Commission, handed down in March, to instead allow five days of unpaid leave per year. Following consideration of submissions as to content, a model clause has now been developed and inserted into all modern awards to provide this new leave entitlement. Application The changes affect all employees covered by a modern award – including casual employees – and operate from the first full pay period on or after 1 August 2018. However, the entitlement does not apply to employees who are: covered by an enterprise award covered by an enterprise agreement covered by state reference public sector awards not covered by either an award or agreement. The Australian Government announced at the time of the Commission decision earlier this year that it would amend the Fair Work Act 2009 (Cth) (FW Act) to extend the entitlement to cover the above employees, although this has not yet occurred. The entitlement An eligible employee is able to take unpaid leave under this new entitlement to deal with domestic violence if the employee: is experiencing family and domestic violence; 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 of their ordinary work hours. The model clause defines ‘family and domestic violence’ as ‘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.’ For the purpose of that definition, an employee’s ‘family member’ means one of the following: the employee’s spouse, de facto partner (including former spouse or de facto partner), child, parent, grandparent, grandchild or sibling; a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner (including former spouse or de facto partner) of the employee; or a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules. Circumstances where an employee may need to ‘do something’ to deal with the impact of family and domestic violence include attending an urgent court hearing, accessing police services, or making arrangements for their safety or the safety of a family member, including relocating. The annual five day entitlement becomes available at the start of every 12 month period of employment (including for new employees), and unused leave does not accumulate from year to year. Part-time employees remain entitled to the full leave period, without pro rata calculation. Leave can also be taken by an eligible employee for less than a whole day, by agreement between the employer and the employee concerned. As with other forms of leave entitlement, an employee’s right to take unpaid family and domestic violence leave is subject to notice and evidence requirements, which mirror the notice requirements for personal / carer’s leave under the FW Act – namely, the employee is required to provide notice as soon as practicable, which can include at a time after the leave has started, and must advise the employer of the period (or expected period) of the leave. The employee may also need to provide evidence to support taking the leave, if required by the employer, which may include a statutory declaration or a document issued by the police, a court or a family violence support service. Further, the model clause places an obligation on employers to take steps to ensure that information concerning notice given by an employee seeking to access family and domestic violence leave is treated confidentially, as far as it is reasonably practicable to do so. However, there is an exception where disclosing the information is required by law or is necessary to protect the life, health or safety of the employee or another person. Next steps The model clause establishes a new workplace right for many employees. The first step for employers should be to determine which of their employees are covered by a modern award and so are entitled to this leave. Employers should also seek to update their leave policies and procedures to ensure they have appropriate processes in place to deal with any applications to take leave under the model clause (keeping in mind the confidentiality requirements of the model clause) as well as record keeping obligations.
