The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 passed both houses of Parliament on Thursday 6 December 2018 and also received royal assent on Tuesday 11 December 2018.
The Bill inserts a new entitlement in the National Employment Standards for all national system employees to five days of unpaid family and domestic violence leave within a 12 month period. The entitlement commenced common Wednesday 12 December 2018 (Commencement Date). The Bill does not preclude employers applying their own additional domestic and family violence policies and practices (e.g. offering paid leave).
When is the entitlement available?
The entitlement is available to an employee if:
- the employee is experiencing “family and domestic violence”;
- the employee needs to do something to deal with the impact of the “family and domestic violence”; and
- it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.
What is “family and domestic violence”?
“Family and domestic violence” is violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful. A close relative is a member of the employee’s immediate family, or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
What is the scope of the entitlement?
- applies to all types of employees, including casual employees;
- is available in full to part time and casual employees, rather than pro-rated;
- is available in full at the commencement of each 12 month period (rather than accruing through the year);
- may be taken as a single continuous 5 day period, as separate periods of 1 or more days, or in any separate periods to which the employer and employee agree (including periods of less than one day);
- does not accumulate from year to year.
For non-permanent employees who may be engaged and re-engaged multiple times by the same employer (i.e. casual employees or employees employed for a specified periods of time, task or specified season (Non-Permanent Employees)), the Bill states that the start of their employment is deemed to be the start of their first employment with the employer. For example, this means that for casual employees, they will only get five days of unpaid family and domestic violence leave in a 12 month period with that employer, not five days per engagement (as the nature of casual employment means that the employee is re-engaged with each shift of work).
How does this work for current employees?
Employees employed as at the Commencement Date will gain the full benefit of the five days of unpaid leave from the Commencement Date, rather than having to wait until the anniversary of the start of their employment. After the Commencement Date, the five days of entitlement will then reset on the day of the anniversary of when an employee’s employment started. For example, an employee who started employment with their employer on 10 April 2018 will gain the full five day entitlement upon commencement of the new provisions, and that entitlement will thereafter reset on 10 April each year of their employment with that employer. For Non-Permanent Employees, the anniversary date is deemed to be the start of their first employment with the employer.
What are the evidence and notice requirements for the entitlement?
The notice requirement is that the employee must provide notice to the employer as soon as practicable (which may be a time after the leave has started), and must advise the employer of the period, or expected period of leave. The employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken because the employee needs to do something to deal with the impact of the “family and domestic violence”, and that it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.
Employers must also take steps to ensure that the information they receive pursuant to the employee’s notification is treated confidentially, as far as is reasonably practicable to do so. This does not prevent the employer from disclosing information provided to an employee if the disclosure is required by an Australian law, or is necessary to protect the life, health or safety of the employee or another person.
What if there are uncertainties and difficulties that arise with the interaction between enterprise agreements and unpaid family and domestic violence leave?
The Bill does not allow modern awards or enterprise agreements to include evidence requirements in relation to unpaid family and domestic violence leave. Further, existing enterprise agreements may already provide employees with different forms of leave or an analogous entitlement that is accessible when an employee is experiencing family and domestic violence. Terms in existing enterprise agreements may, for example, use different definitions or operate differently to the new unpaid family and domestic violence leave entitlement, and therefore it may not be clear how the terms of those agreements will interact with the new entitlement.
The Bill allows an employer, employee or employee organisation covered by an enterprise agreement (made before the 12 December 2018 Commencement Date) to apply to the FWC if:
- there are uncertainties or difficulties that arise in relation to the interaction between the agreement and the unpaid family and domestic violence provisions (including the notice and evidence provisions); or
- where there is a need to make the agreement operate effectively with the new provisions.
The FWC can then make a determination varying the agreement to resolve the issue. Any variation would take effect on the day specified in the determination (which may be retrospective).
This article was written by Wendy Fauvel, Senior Associate and Ewa Lobaza, Solicitor.
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