In brief - Recent amendments to the National Employment Standards (NES) mean that all employees covered by the Fair Work Act 2009 can access five days of unpaid family and domestic violence leave.
The changes were introduced under the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 which commenced on 12 December 2018.
All national system employees now entitled to unpaid family and domestic violence leave
From 1 August 2018, as part of the four yearly review of modern awards, all modern awards have provided for five days of unpaid family and domestic violence leave. However, the new modern award provisions only apply to employees covered by those awards which left non-award covered employees without access to the entitlement. The new NES entitlement will mean consistency in entitlements for all employees covered by the Fair Work Act 2009.
Consistent with the modern award model clause, the NES entitlement:
- provides five days of unpaid family and domestic violence leave in a 12 month period;
- applies to all types of employees including casual employees;
- is available in full at the beginning of each 12 month period, rather than accruing through the year;
- does not accumulate from year to year; and
- is available in full to part-time and casual employees, rather than pro-rated.
Employees will be able to access the unpaid leave to deal with the impact of domestic and family violence, if it is impractical to do so outside their ordinary hours of work.
Obligations for employers with employees entitled to unpaid family and domestic violence leave
Employers are required to ensure that information an employee has given concerning the taking of unpaid family and domestic violence leave is treated confidentially as far as reasonably practicable. The exceptions to this obligation are where a disclosure is necessary to protect the life, health or safety of the employee or another person or when a disclosure is legally required.
Civil penalties apply for a contravention of the new NES entitlement of up to $630,000 for a serious contravention or otherwise up to $63,000. Employees who exercise the new workplace right to take unpaid family and domestic violence leave will also be protected from unlawful adverse action under the current general protections provisions of the Fair Work Act 2009.
Non-award covered employees can access the entitlement from 12 December 2018. Award covered employees have had access to the entitlement since 1 August 2018.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.