From 1 August 2018, employees covered by a Modern Award will be entitled to 5 days of unpaid leave to deal with family and domestic violence.
Entitlement
An employee covered by a Modern Award is entitled to 5 days unpaid leave to deal with family and domestic violence irrespective of whether they are employed on a full time, part time or casual basis.
The leave is available in full at the start of each 12 month period of the employee’s employment and does not accumulate from year to year.
By agreement between the employee and the employer:
- the period of leave may be taken in less than a day; or
- the employee may take more than 5 days unpaid leave.
Family and Domestic Violence
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.”
A family member is:
- a spouse, 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.
A reference to a spouse or de facto partner includes a former spouse or de facto partner.
Taking Leave
An employee may take unpaid leave to deal with family and domestic violence if the employee:
- is experiencing family and domestic violence; and
- 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 their ordinary hours of work.
Reasons for taking leave may include making arrangements for the employee’s safety or the safety of an employee’s family member (including relocation), attending to urgent court hearings or accessing police services.
Continuity of Employment
Any time taken by an employee as unpaid leave to deal with family and domestic violence does not break an employee’s continuity of service with their employer.
However, taking unpaid leave to deal with family and domestic violence does not count towards service.
Notice and Evidence
Notice must be given by an employee to their employer:
- as soon as practicable (which may be a time after the leave has commenced); and
- advising of the period or the expected period of the leave being taken.
If an employee has given notice, an employer may require and the employee must give evidence to their employee which would satisfy a reasonable person that the employee is taking leave to deal with family and domestic violence.
Evidence may include a document issued by the State police service, a court or family violence support service or a statutory declaration issued by the employee.
Confidentiality
Family and domestic violence is a serious and sensitive matter.
If any information concerning the employee’s circumstances is mishandled, the employee concerned may be subject to adverse consequences.
On that basis, an employer must take steps to ensure that any information, notice and/or evidence received from an employee is treated confidentially (as far as it is reasonably practicable to do so). Employers should consult with an employee as to how they will deal with the information they have received.
If required by law or to protect the life, health or safety of the employee or another person, an employer may disclose the information, notice and/or evidence given to it by an employee.
Summary
Considering the significant impact of this entitlement, it is important for employers to understand their obligations and for employees to understand their rights.
We assist employers and employees with all aspects of employment, including entitlements and the application of Modern Awards.
