The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 passed through Parliament in the final sitting week for 2018. The legislation amends the National Employment Standards (NES) in the Fair Work Act 2009 (Act) to give all employees up to five days of unpaid family and domestic violence leave per year.

‘Family and domestic violence’ is defined in the Act as violent, threatening or other abusive behaviour by a close relative of an employee that: seeks to coerce or control the employee; and causes the employee harm or to be fearful.

An employee may take unpaid family and domestic violence leave if: the employee is experiencing family and domestic violence; and the employee needs 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 the employee’s ordinary hours of work.

The Act gives the following examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by the new entitlement:

  • arranging for the safety of the employee or a close relative (including relocation);
  • attending urgent court hearings; or
  • accessing police services.

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

The provisions in the Act are very similar to those in the model clause that the Fair Work Commission recently inserted into all modern awards. Therefore, an employer who complies with the award provisions for award-covered employees is unlikely to encounter any compliance difficulties.

Given that the new unpaid family and domestic violence provisions are terms of the NES, the provisions apply to all employees, including those who might also be covered by an enterprise agreement. Enterprise agreements are able to include more generous family and domestic violence leave provisions but less generous provisions in an agreement are of no effect and the provisions in the Act apply.

The Amendment Act gives the FWC the power to make a determination varying an enterprise agreement to resolve any uncertainty or difficulty relating to the interaction between the agreement and the new provisions in the NES.

The amendments operate from 12 December 2018.

If you would like more information about the national employment standards please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice introducing family and domestic violence leave policies into your workplace or negotiating such leave in an enterprise agreement, 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.

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