A Fair Work Commission ruling made on 6 July 2018 has resulted in a model term being inserted in all modern awards effective 1 August 2018.
Eligible employees now have the right to access unpaid domestic and family violence leave.
As a result of the changes, employers need to familiarise themselves with their legal obligations to employees who are the victims of domestic and family violence.
A model provision has now been inserted in modern awards which give employees an entitlement to a period of unpaid domestic and family violence leave.
As a result of this change, employees covered by an industry or occupation award (including part-time and casual workers) can now apply for 5 days of unpaid domestic and family violence leave.
Not all employees are entitled to domestic and family violence leave. Employees covered by enterprise awards, State reference public sector awards, enterprise and other registered agreements and awards are excluded.
Employees can find out whether they are entitled to unpaid domestic and family violence leave by looking at the relevant award.
Family and domestic violence is defined in the various awards as:-
- violence by a person against;
- a current or former partner, de facto partner or former de facto partner, child, parent, grandparent, grandchild or sibling,
- a child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner, or,
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Family and domestic violence is defined as violent, threatening or other abusive behaviour by an employee’s family member that seeks to coerce or control the employee or causes them harm or fear.
An employee is entitled to take unpaid leave if:-
- they are experiencing family and domestic violence and,
- they need time to deal with the impact of family or domestic violence where it is impractical to do so outside their ordinary hours of work.
For example, the employee may need time to make arrangements for their safety or the safety of a child, to attend the police station, to attend court or to obtain family violence support through a family violence agency.
If an employee takes family and domestic violence leave they are required to let their employer know they are taking the leave as soon as possible. This can happen after the leave has started. Employees must also tell their employer how long they expect the leave to last.
The employee and employer may negotiate additional time as required.
If an employer refuses to give an employee the leave sought the employee is entitled to challenge the employer’s decision.
Employers are entitled to ask for evidence that the employee took domestic and family violence leave to deal with the domestic and family violence.
Examples of evidence that an employer can ask for include:
- police reports or briefs;
- applications for intervention orders or interim or final intervention orders;
- family violence support service documents;
- statutory declarations.
Employers are required to take reasonably practicable steps to keep information about the employee’s situation confidential.
They must not disclose the type of leave that is being taken or any of the evidence provided by the employee in support of the leave, unless they are required by law to disclose the information or it is necessary to protect the life, health or safety of the employee or another person.
Employers should also be aware that the family and domestic violence may have an impact at work.
For example, the employee may be stalked at their workplace, including phone calls, emails and coming to the workplace. Other workers may be at risk of threats, physical or verbal abuse.
Employers ought to implement safety measures to deal with such risks including alerting reception to the possibility of the perpetrator coming to the workplace, and reminding staff not to divulge personal information about employees to callers such as work habits, phone numbers and email addresses.
Robertson Hyetts has experience in providing advice to employers and employees in relation to their rights and obligations as well as providing family law advice and family violence advice.
Please feel welcome to contact us on (03) 5434 6666.