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FAIR WORK COMMISSION UNPAID DOMESTIC VIOLENCE LEAVE CASE

All modern awards have been varied to include the Fair Work Commission’s (FWC) model Family and Domestic Violence Leave Clause, with effect from the first pay period that starts on or after 1 August 2018. The clause gives employees an entitlement to up to five days per annum of unpaid domestic violence leave.

Ai Group has played a leading role throughout the FWC’s Family and Domestic Violence Leave Case in representing the interests of employers. In the case, a Full Bench of the FWC rejected the ACTU’s claim for 10 days of paid family and domestic violence leave but decided to implement an unpaid 5-day leave entitlement.

The FWC’s model clause applies to all employees to whom the relevant award applies, including casuals and part-time employees.

The clause defines “family and domestic violence” as:

“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 5 day unpaid leave entitlement is available in full at the start of each 12 month period of the employee’s employment and does not accumulate from year to year.

An employee may take unpaid leave to deal with family and domestic violence if the employee:

  • is experiencing family and domestic violence; and
  • needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do this outside their ordinary hours of work.

The clause states that the reasons for which an employee may take family and domestic violence leave include:

  • making arrangements for their safety or the safety of a family member (including relocation);
  • attending urgent court hearings; or
  • accessing police services.

The time that an employee is on unpaid family and domestic violence leave does not count as “service” but does not break the employee’s continuity of service.

The employee must give the employer notice of the taking of the leave. The notice must be given to the employer as soon as practicable (which may be a time after the leave has started), and must advise the employer of the period, or expected period, of the leave.

An employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a purpose covered by the clause. The clause states that, depending on the circumstances, evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

Employers must take steps to ensure that information concerning any notice an employee has given, or evidence an employee has provided is treated confidentially, as far as it is reasonably practicable to do so.

If you would like more information about domestic violence leave please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about developing domestic violence leave policies in your workplace  or negotiating domestic violence leave claims by unions please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

Published - 20/08/18

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