Unpaid family and domestic violence leave – The new National Employment Standard

11 February 2019

As from 12 December 2018, a new entitlement of five days’ unpaid family and domestic violence leave has become available to employees as part of the National Employment Standards (NES). This change is the result of the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) coming in to effect.┬áPreviously this leave was limited to employees covered by a modern award or at the discretion of their employer.

Why was family and domestic violence leave introduced?

The entitlement was introduced by Parliament as recognition of the significant impact family and domestic violence has on the community and workforce participation with employees needing to take time off work to deal with the impact of family and domestic violence.

Who does the leave apply to?

The leave applies to all types of employees (including part-time and casuals), and is available in full at the commencement of each 12 month period, rather than accruing through the year. However the leave does not accumulate from year to year.

When can the leave be taken?

An employee will be entitled to take unpaid family and domestic violence leave if they need to deal with the impacts of family and domestic violence, and it is impractical for the employee to do so outside of their ordinary hours of work.
Family and domestic violence is defined as violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control an employee, and causes the employee harm or to be fearful. Examples of situations in which an employee may need to deal with the impact of family and domestic violence includes arranging for the safety of the employee or a close relative, attending urgent court hearings, or accessing police services.

Important considerations for employers

Employers should be aware that an unreasonable failure to provide an employee with family and domestic violence leave may be considered a breach of the NES and can result in prosecution and penalties for the employer.

While employers can ask an employee for evidence as to whether the leave was taken to deal with family and domestic violence, any such request for evidence needs to be reasonable, and an employer is required to keep such information confidential (as far as reasonably practicable).

Additionally, a request by an employee for leave is an exercise of a workplace right, and if an employee is treated adversely for making such a request, an employer will be in breach of the General Protections provisions of the Fair Work Act 2009 (Cth).

How can we help you?

HWL Ebsworth Lawyers has advised employers extensively on workplace rights and entitlements and compliance with workplace laws. Please contact us to discuss the implications of this change in legislation providing for unpaid family and domestic violence leave which has now become part of the National Employment Standards.

This article was written by Mark Howard, Partner and Disha Kamal, Law Graduate.

Mark Howard

P:+61 3 8644 3673

E: mhoward@hwle.com.au

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