Unpaid Family and Domestic Violence Leave

The Fair Work Commission has finalised the content of a term entitling employees to unpaid family and domestic violence leave in its recent decision [2018] FWCFB 3936. The term was inserted into all modern awards as part of its 4 yearly review and the 5 days’ unpaid family and domestic violence leave is effective from 1 August 2018.

The leave is only available to employees where a modern award applies to their employment.

As part of the Review, the Australian Council for Trade Unions (ACTU) made a claim for 10 days paid leave. On 3 July 2017 the Full Bench of the Fair Work Commission rejected ACTU’s submissions for paid family and domestic violence leave, but the majority expressed a preliminary view that employees should be entitled to unpaid family and domestic violence leave.

In March 2018, the Full Bench confirmed the view of the majority that employees should be entitled to unpaid family and domestic violence leave. In that decision, the Commission acknowledged that ‘…retaining employment is an important pathway out of violent relationships.’

Between 3 May 2018 and 1 June 2018, the Fair Work Commission invited comment from interested parties on whether its draft model term reflected the outcome of the March 2018 decision. Submissions made by the Australian Council of Trade Unions (ACTU) were incorporated into the term to improve clarity.

The model term

Family and domestic violence leave entitles employees to 5 days’ of unpaid leave. It is accessible where an employee needs to do something to deal with the impacts of family and domestic violence, and where it is impracticable to access or do that thing outside of ordinary work hours.

In summary, the leave:

• Can be accessed by all employees, including casuals;
• Does not accrue depending on service. It is available in full at the start of each 12 month period of an employee’s employment;
• Does not accumulate from year to year;
• Will be available in full to part-time and casual employees (i.e. not pro-rated);
• Does not count as service, but does not break an employee’s continuous service;
• Contains notice and evidence requirements – an employee is required to provide their employer with notice of taking the leave and an employer may request evidence to support the taking of the leave;
• Imposes confidentiality obligations on employers.

Implications for employers

Employers should:

• Review their employment arrangements to understand which employees are entitled to this leave (i.e. where a modern award applies);
• Update their leave policies and procedures to reflect this new entitlement; and
• Consider whether to provide this (or a similar) entitlement to modern award free employees for consistency in the workplace.