As of today, modern awards will be amended to include 5 days of unpaid family and domestic violence leave per year. This change affects all award covered employees.
What is family and domestic violence?
‘Family and domestic violence’ means violent, threatening or other abusive behaviour by an employee’s family member that seeks to coerce or control the employee, or causes them harm or fear.
A family member is defined to include a:
- Spouse or former spouse;
- De facto partner or former de facto partner;
- An employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling; or
- A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
When can an employee take family and domestic violence leave?
Family and domestic violence leave can be taken by all employees (including casuals) to deal with the impact of family and domestic violence, and where it is impractical to do so outside their ordinary hours of work.
The Fair Work Ombudsman has stated that activities to deal with the impact of family and domestic violence might include:
- Making arrangements for the employee’s safety, or the safety of a family member;
- Attending court hearings; and
- Accessing police services.
Family and domestic violence leave does not accrue over time, and employees are entitled to take the 5 days from the commencement of their employment. The 5 days renews every 12 months, but does not carry over from year to year if it is not used in any one year.
Who is not entitled to family and domestic violence leave?
The following employees are not entitled to take award-prescribed family and domestic violence leave:
- Employees covered by an Enterprise Agreement (note that some Enterprise Agreements already contain entitlements to domestic violence leave and that this new award entitlement will now become part of the “better off overall test” for all new Enterprise Agreements);
- Employees covered by a State reference public sector award; and
- Award and agreement free employees.
What evidence does an employee need to access family and domestic violence leave?
An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence. If the employee does not provide the requested evidence, they may not get that leave.
The evidence must convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.
The Fair Work Ombudsman has stated that evidence may include:
- Documents issued by the police;
- Documents issued by a court;
- Family violence support service documents; and
- A statutory declaration.
What are the employer’s obligations around the employee’s evidence of family and domestic violence?
Employers must always take reasonably practicable steps to keep any information about an employee’s personal situation confidential. This obligation definitely covers information about the employee giving notice that they are taking family and domestic violence leave and any evidence the employee provides. For abundant clarity, family and domestic violence is a sensitive topic, and employers must respect an employee’s right to keep this information private.
What does your business need to do?
We say that as a minimum:
- You should understand which of your employees are award covered;
- Have a leave policy, or amend your current leave policy to include family and domestic violence leave; and
- Review your confidentiality procedures with payroll and human resources personnel.
If you need assistance with this, you can contact the Employment & Industrial Relations team at Meyer Vandenberg.