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Domestic violence leave now available to Australian employees

Domestic violence leave now available to employees

James Simpson, Timothy Zahara and Josh Martin look at the new domestic violence entitlements now available to millions of Australians.

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As of 1 August 2018, over 2.3 million Australian employees who are covered by modern awards are now entitled to five days of unpaid family and domestic violence leave each year. The leave is intended to enable employees to be absent from work when they need to do something to deal with the impact of family and domestic violence.

Employers must ensure that they have appropriate processes in place to enable employees to access this new entitlement.

Who is entitled to take family and domestic violence leave?

At this stage, the entitlement applies to all employees who are covered by any of the 122 modern awards, including casual and part-time employees. This includes employees who are engaged on an individual written agreement but are concurrently covered by a modern award.

In some circumstances, employees covered by enterprise agreements that incorporate a modern award may also become entitled to take unpaid domestic and family violence leave.

How does it work?

An employee's entitlement to unpaid family and domestic violence leave:

  • is available in full at the commencement of each 12 month period (i.e. it does not accrue throughout the course of the year)
  • does not accumulate from year to year, and
  • is available in full to part-time and casual employees (i.e. not pro-rated).

Employees are entitled to take family and domestic leave if they:

  • are experiencing family and domestic violence
  • need to do something to deal with the impact of the family and domestic violence (e.g. making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services), and
  • it is impractical for the employee to do that thing outside their ordinary hours of work.

Employees must give as much notice as is practicable of taking the leave, although this notice can be given after the leave has commenced. An employer may require the employee to provide reasonable evidence of the leave (e.g. a document issued by the police service, a court or a family violence support service, or a statutory declaration).

Potential extension to all employees

The Government announced in March its intention to introduce legislation to amend the Fair Work Act 2009 (Cth) providing almost all employees in Australia with an entitlement to unpaid family and domestic violence leave on the same basis as is now available to award-covered employees. To date, no such legislation has been introduced.

Additionally, the Fair Work Commission (FWC) has proposed to revisit this issue in June 2021, after family and domestic violence leave has been in operation for 3 years. At that time, the FWC will consider whether any changes are needed and will also revisit the question of whether provisions should be made for paid family and domestic violence leave.

Our team at KPMG Law can assist clients seeking to ascertain whether their employees are entitled to family and domestic leave, as well as any other associated leave or employment related matters.

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