On Friday 6 June 2018 the Full Bench of the Fair Work Commission, in a decision published that afternoon, advised that it intended that Domestic Violence Leave would commence through the modern award system on 1 August 2018.
This decision finalises a process which saw the Fair Work Commission reject the ACTU’s claim for paid domestic violence leave in July 2017, but left the door open for the possibility unpaid domestic violence leave.
In March 2018 the Commission was convinced to allow unpaid domestic violence leave to be included in all modern awards.
The decision of 6 June finalises the wording of the domestic violence leave clause.
Under the domestic violence leave clause, an employee is entitled to five days’ unpaid leave to deal with domestic and family violence.
This five days’ unpaid leave is available at the start of each 12 month period of the employee’s employment; that is to say, it does not accrue over time, and is instead available from:
- for new employees – the date the employee commenced employment; or
- for existing employees – from August 1 2018.
The leave does not accumulate from year to year, so an employee will never have more than five days’ unpaid leave saved up although employers can agree to allow an employee to take more unpaid leave.
The leave is available to full-time, part-time and casual employees, and the employee may take less than a day of such leave by agreement with the employer – for example, to leave work early to attend a medical or legal appointment.
The period of leave taken does not count as service – so the employee does not accrue annual leave or personal leave on time taken as domestic violence leave – but does not break continuity of service.
Taking the leave
An employee may take domestic violence leave if the employee is experiencing domestic or family violence, and needs to do something to deal with the impact of this domestic violence that is impractical for them to do outside of work hours.
This may mean, for example, attending appointments with lawyers (who typically only operate in business hours), or making arrangements for their safety whilst the other party to the situation is absent.
Notice and evidence
An employee must provide their employer with the same notice of taking the leave in the same manner as personal leave – that is, as soon as possible, and may be after the leave has started.
The employee must also provide evidence on request of the employer to demonstrate the entitlement to the leave. This may include, for example, court summons, a police document, a letter from a family violence support service, or a statutory declaration from the employee.
Because of the nature of family and domestic violence, employers must ensure that any notice or evidence an employee gives with respect to domestic violence leave is treated as confidential.
This includes simple measures such as not telling the employee’s co-workers that they are on domestic violence leave, and ensuring that any evidence provided by the employee to substantiate their right to the unpaid leave is not left lying about for any curious employee to read.
Because this clause will be inserted into the modern awards, it will only apply to those employees who are employed under a modern award.
At present, employees under an enterprise agreement (unless that agreement includes its own entitlement to domestic violence leave) and award-free employees will not be entitled to unpaid domestic violence leave.
Following the March decision, Minister for Jobs and Small Business Craig Laundy announced that the government would legislate to include unpaid domestic violence leave in the Fair Work Act 2009 (Cth), thereby extending the entitlement to all employees in Australia.
So far this legislation has not been introduced, with the Government likely awaiting the final form of the modern award terms. We anticipate that a legislative proposal will follow in due course.
Please don’t hesitate to contact the National Retail Association on 1800 RETAIL (738 245) for more information.