The Government has passed changes to the Fair Work Act providing employees with 5 days’ unpaid family and domestic violence leave each year.

The new leave entitlement commenced on 12 December 2018 and has been added to the National Employment Standards (NES) of the Fair Work Act.

The new NES leave entitlement is almost identical to the provisions added to modern awards by the Fair Work Commission in August this year (see our Employment Update) and extends the leave from just award covered employees to all employees under the Fair Work Act.

The new NES leave entitlement:

• applies to all employees and is not pro-rated for part-time or casual employees;
• is available in full at the start of each 12 month period of employment;
• applies to employees whose employment started before the new entitlement commenced (12 December 2018) as if the 12 month period of employment started on 12 December 2018;
• does not accumulate from year to year;
• can be taken as a single 5 day period, as separate periods of one or more days or, where agreed between the employee and employer, as any separate periods including part-days;

An employee may take the leave if they are experiencing family and domestic violence and need to do something to deal with the impact of the violence and it is impractical for them to do it outside their ordinary hours of work.  This may include making arrangements for safety such as relocation, attending urgent court hearings or accessing police services.

Employees must give their employer notice of the leave as soon as practicable (which may be after the leave has started) and advise of the expected period of leave.

Employers may request that employees provide evidence that the leave is taken for family and domestic violence reasons.  Employers must take steps to ensure information given by the employee is treated confidentially as far as is reasonably practicable to do so.

The Labour government and employee representatives have stated that the changes fall short and that 10 days of paid leave is required to properly assist victims of domestic violence.

Actions for employers

Employers should be familiar with the new leave provisions contained in the Act and may need to review and update their policies and procedures.

Employers may also want to communicate with employees about the new entitlements, the circumstances in which the leave can be taken and the employee notice and evidence requirements.