As part of its four-yearly review of modern awards, the Fair Work Commission has ruled on domestic violence leave entitlements. With effect from 1 August 2018, all modern awards will be amended to include a new clause conferring employees with an entitlement to up to 5 days of unpaid family and domestic violence leave per annum.
The unpaid leave will be available to employees who are experiencing family and domestic violence. An employee will be allowed to take leave if they need ‘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’.
The unpaid leave entitlement:
will apply to all award-covered employees (including casuals);
will be available in full at the commencement of each 12-month period, rather than accruing progressively during a year of service;
will not accumulate from year to year; and
will be available in full to part-time and casual employees (i.e. not pro-rated).
There is no requirement for an employee to access any available paid leave entitlement before accessing the unpaid family and domestic violence leave.
An employer can ask an employee seeking domestic violence leave to provide evidence that “would satisfy a reasonable person”, such as a statutory declaration, or a document issued by the police, a court or a family violence support service.
Importantly, the federal government is expected to amend the Fair Work Act 2009 (Cth) (FW Act) to provide access to the same domestic violence leave entitlements for all National System Employees, not just those covered by modern awards. Small Business Minister Craig Laundy and Minister for Women Kelly O’Dwyer said, “we will amend the Act in line with the final model clause to give other federal system employees access to unpaid leave on the same terms”.
In December 2017, Opposition Leader Bill Shorten stated that, if elected, a future Labor Government would introduce ten days of domestic violence leave for employees. So far, Prime Minister Malcolm Turnbull has ruled out matching this pledge. On 5 February 2018, Greens MP Adam Bandt introduced the Fair Work Amendment (Improving National Employment Standards) Bill 2018 (Cth) (the Bill) into the House of Representatives. The Bill seeks to amend the FW Act to enable an employee to take 10 days of paid family and domestic violence leave per year or 2 days of unpaid family and domestic violence leave for each permissible occasion. The Bill is currently before the House of Representatives.
In 2021, the Fair Work Commission proposes to revisit the issue of domestic violence leave. At that time, the Commission will consider whether any changes should be made to the unpaid leave clause, and whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave. In 2021, the Commission will also revisit the question of whether there should be a minimum entitlement to paid family and domestic violence leave.