New In Modern Awards: Unpaid Family And Domestic Violence Leave Entitlement
By Renee Karakinos, Law Graduate, MST Lawyers and James Sanders, Associate, MST Lawyers
Introduction
Social awareness of domestic and family violence in Australia is on the rise. In light of this, the Fair Work Commission (FWC), as part of their 4 yearly modern awards review, has inserted a new leave entitlement called “Leave to deal with family and domestic violence’ into all modern awards. This award entitlement came into effect 1 August 2018.
Background
In a decision issued on 26 March 2018, the FWC decided to provide five days’ unpaid leave per annum to all employees, to allow them to deal with family and domestic violence.
This leave is in addition to the personal leave provided for in the National Employment Standards.
What Is ‘Leave To Deal With Family And Domestic Violence’?
All employees, including casuals, are now entitled to five days’ of unpaid leave, available in full from the beginning of each 12 month period, to deal with family and domestic violence.
The leave will not accumulate from year to year and is available in full to full time, part time and casual employees (i.e. not pro-rata).
The leave will be available to an employee who is:
- experiencing family and domestic violence, and,
- they need to do something to deal with the impact of family and domestic violence (and it is impractical for them to do it outside their ordinary hours of work).
The leave defines family and domestic violence as ‘violent, threatening or other abusive behaviour by an employee’s family member that seeks to coerce or control the employee, and that causes them harm or to be fearful’.
A family member is defined as:
- a spouse (or former spouse), de facto partner (or former de facto partner), child, parent, grandparent, grandchild or sibling of the employee;
- a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner; or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Who Can Access The Entitlement?
The entitlement is available to all employees who are covered by modern awards but does not apply to employees covered by:
- enterprise awards;
- state reference public sector awards; or
- enterprise and other registered agreements;
that do not contain a separate domestic violence leave clause.
The leave will also not apply to award and agreement free employees.
What This Means For Employers
The introduction of the new clause in all industry and occupation modern awards is a reminder for employers to revisit their policies.
The FWC intends to revisit the issue in June 2021 to determine its effectiveness and utilisation.
For more information, please contact our Employment Law team by email or on telephone +61 8540 0200.
