Family and Domestic Violence Leave

Further to our previous updates, the Fair Work Commission has released the model term providing for unpaid family and domestic violence leave which will be included in modern awards. Although the original decision was handed down in March this year, ongoing debate over how the model provision should be drafted has left this matter from being finalised until now.

The entitlement to unpaid family and domestic violence leave will take effect from 1 August 2018. With this date only weeks away, we thought it a perfect opportunity to summarise the model provision and what it will mean for businesses.

In summary

Entitlement to unpaid family and domestic violence leave will be as follows:

• The phrase '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.

• The reference to 'family member' means:

(i) a spouse/de facto partner (current or former), child, parent, grandparent, grandchild or sibling of the employee; or
(ii) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(iii) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

• The entitled is to 5 days unpaid leave for all employees.

• The unpaid leave will be available, in full, to all employees including part-time and casual employees.

• The entitlement will be available in full at the commencement of each 12-month period rather than accruing progressively during a year of service.

• The entitlement will not accumulate from year to year.

• The leave can be taken if the employee is experiencing family and or domestic violence and needs to do something to deal with the impact of the family and domestic violence and it is impractical for them to do that thing outside their ordinary hours of work.

• An employer may require evidence that satisfies a reasonable person the leave is taken for the specified reason. The circumstances will determine such evidence but may include a document from the police force, a court, family violence counsellor or a statutory declaration.

• Employers are required to take steps to ensure any information provided by the employee be treated confidentially.

Although Award-free employees are not covered by such terms, employers should remain sensitive to this employee issue whether they are covered or not. Businesses should consider how to manage this issue if it arises in the workplace and not take any adverse action against an employee as a result. Workforce Guardian will now look to draft a template workplace policy on the issue that businesses may seek to utilise.

Author: Charles Watson, General Manager HR at Workforce Guardian

24/07/18

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