One in four women in Australia have experienced family and domestic violence1 (almost 2.2 million women). Domestic and intimate partner homicides represent the highest proportion of any category of homicides in Australia. At least one woman a week is killed by a partner or former partner.2 Family and domestic violence is the leading contributor to death, disability and ill-health among Australian women aged between 15 and 44.
Such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. It is an issue that impacts on workplaces and which requires specific action.
Extract from FWC Decision :4 yearly review of modern awards
Family and Domestic Violence AM2015/1  FWCFB 1691 26 March 2018
The FWC has decided that employees will have access to an entitlement of five days’ unpaid leave. That unpaid leave entitlement:
- will apply to all employees (including casuals);
- will be available in full at the commencement of each 12 month period rather than accruing progressively during a year of service;
- will not accumulate from year to year; and
- will be available in full to part-time and casual employees (i.e. not pro-rated).
The FWC has drafted a model term to be inserted into every modern Award and distributed it this month for comment. Comments must be provided to the FWC by Friday 1 June 2018.
The Model Term is set out below.
Leave to deal with Family and Domestic Violence: Model Term
X.1 This clause applies to all full time, part-time and casual employees.
(a) In this clause:
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 that causes them harm or to be fearful.
family member means:
(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(c) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
A reference to a spouse or de facto partner in the definition of family member in clause X.2(a) includes a former spouse or de facto partner.
X.3 Entitlement to unpaid leave
(a) Each year, an employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence.
(b) The entitlement to 5 days’ unpaid leave to deal with family and domestic violence:
(i) is available in full at the start of each 12 month period of the employee’s employment; and
(ii) does not accumulate from year to year.
Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.
Note 2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence.
X.4 Taking unpaid leave
An employee may take unpaid leave to deal with family and domestic violence if the employee:
(a) is experiencing family and domestic violence; and
(b) 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 their ordinary hours of work.
Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
X.5 Service and continuity
The time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.
X.6 Notice and evidence requirements
An employee must give their employer notice of the taking of leave by the employee under clause X.
(b) The notice:
(i) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(ii) must advise the employer of the period, or expected period, of the leave.
An employee who has given their employer notice of the taking of leave under clause X must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause X.4.
Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.
(a) Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X.6 is treated confidentially, as far as it is reasonably practicable to do so.
(b) Nothing in clause X prevents an employer from disclosing information provided by 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.
Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.
An employee is not entitled to take leave under clause X unless the employee complies with clause X.
Maeve Doyle is a senior employment lawyer with Nexus. If you need further advice or support, she can be contacted on [email protected] or by telephone +612 9016 0141.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.