Author: Lehanne Bleumink, Gold Seal HR Services Manager.
Following a Fair Work Commission decision, most modern awards will be varied to give employees access to 5 days of unpaid family and domestic violence leave each year. Awards have been updated to include a new clause which applies from the first full pay period on or after 1 August 2018 and applies to all employees, including casuals.
The Banking Finance and Insurance Award 2010 has been updated to include the new clause at clause 28, click on the link to view
What is family and domestic violence?
Family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and causes them harm or to be fearful. A family member includes an employee’s:
- Spouse or former spouse
- De facto partner or former de facto partner
- Current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling; or
- A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules
Taking unpaid leave
Employees are entitled to the full 5 days from the day they start work – there is no requirement to accrue the entitlement. The 5 days renews each 12 months but doesn’t accumulate from year to year if it isn’t used. The leave doesn’t need to be taken all at once and can be taken as single or multiple days and the employer and employee may agree that the employee may take more than 5 days or to take less than 1 day at a time.
Employees can take the leave if they need to deal with the impact of family and domestic violence and it is impractical to do so outside their ordinary hours of work. For example, this could include making arrangements for their safety or the safety of a family member (including relocation), attending court hearings, or accessing police services.
Unpaid family and domestic violence leave doesn’t break an employee’s period of continuous service but doesn’t count as service when calculating accumulated entitlements such as paid leave. An employee may want to take other types of leave, such as annual leave, and may also want to access flexible working arrangements. Flexibility in the workplace allows employers and employees to make arrangements about working conditions that suit them.
Notice and evidence requirements
If an employee takes family and domestic violence leave they must give their employer notice as soon as practicable (which may be a time after the leave has started), they also need to tell their employer how long they expect the leave to last.
An employer can ask for evidence that the employee took the leave to deal with family and domestic violence, it needs to satisfy a reasonable person that they actually took the leave for this purpose. Depending on the circumstances, such evidence may include a document issued by police, a court or family support service, or a statutory declaration. Employers can ask employees for evidence for as little as 1 day or less off work.
Employers must take reasonably practicable steps to keep any information about an employee’s situation confidential. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide. Employers are not prevented from disclosing information if it is required by law or is necessary to protect the life, health or safety of the employee or another person.
As this information is sensitive employers should work with their employee to discuss and agree on how this information will be handled.
For assistance on any of your HR/IR requirements – call Gold Seal on 03 9510 5100 or email HRServices@goldseal.com.au