Unpaid family and domestic violence leave have been enshrined in Australian law, with almost all Australian employees now having access to five days’ unpaid family and domestic violence leave each year.

The entitlement follows an amendment to the Fair Work Act that has extended the National Employment Standards to include family and domestic violence leave.

The amendments are effective 12 December 2018.

Family and domestic violence is defined as violent, threatening or abusive behaviour by a close relative of the employee that:

• seeks to coerce or control the employee; and

• causes the employee harm or to be fearful.  

The definition of a close relative extends to the employee’s immediate family.

Family and Domestic Violence leave is available where:

• he employee needs to do something to deal with the impact of family and domestic violence (i.e. relocation / attend Court hearings); and

• it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

The entitlement:

• is available to full-time, part-time and casual employees; and

• does not accumulate from year-to-year.

Employees are entitled to the full five days of leave to deal with family and domestic violence at the commencement of each twelve-month period.  The approval of leave is subject to the notice and evidence requirements of the Act, which includes providing the employer with evidence that would satisfy a reasonable person that leave is taken in response to family and domestic violence.  An employee is only required to provide evidence where requested to do so.  

The new family and domestic violence leave provisions obligate employers to maintain confidentiality of any notice or evidence given by the employee taking leave.  Employers are required to maintain confidentiality at all times, except where disclosure is required by law or is necessary to protect the life, health or safety of another person.

The legislative entitlement to five days’ unpaid family and domestic violence leave is not intended to preclude a private agreement between the employer and employee to take additional unpaid leave deal with the impact of family and domestic violence.  Additionally, there is no requirement that the leave be taken for a particular duration. An employee may choose to take unpaid family and domestic violence leave for a continuous five-day period, or for any other periods agreed upon by the employer and employee, including periods of less than one day.

In the event of uncertainty between an existing enterprise agreement and the unpaid domestic violence leave under the National Employment Standards, an employer, employee or employee organisation may apply to the Fair Work Commission to vary the enterprise agreement to address the inconsistency. This mechanism was introduced to alleviate concerns that various enterprise agreements contain terms or definitions that operate differently to the new unpaid family and domestic violence leave entitlement.

To discuss this further or for more information please contact:

Jasmine O'Brien
Principal
Sladen Legal
T +61 3 9611 0149  l M +61 401 926 108
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: jobrien@sladen.com.au                                                                                                            

Katherine Dennis
Senior Associate  
Sladen Legal
T +61 3 9611 0151 | M +61 407 013 010
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: kdennis@sladen.com.au