The Fair Work Amendment (Family and Domestic Violence) Bill 2018 (Bill) successfully passed through both houses of Parliament and received royal assent on 11 December 2018.

The effect of the Bill is that the Fair Work Act 2009 (Act) has been amended to include a new entitlement in the National Employment Standards (NES) to five days of unpaid family and domestic violence leave. The entitlement is consistent with the new modern award entitlement that the Fair Work Commission inserted into all modern awards in March 2018.

As foreshadowed in our article published earlier in the year, under the proposed new laws:

  • employees will have access to five days of unpaid family and domestic violence leave in each one year period (it will not accrue from year to year as contrasted with annual leave or personal leave);
  • the entitlement will apply to all forms of employment, including casual employees;
  • the entitlement will be available in full at the commencement of each one year period; and
  • all employees will have five days’ unpaid leave per year regardless of hours worked.

In relation to the practical impact of this new entitlement on businesses, employers should be conscious of:

  • obligations of confidentiality regarding the leave;
  • civil penalties which may be imposed for contravention of any NES provisions; and
  • taking any action which may be seen as prejudicial action because an employee accesses or proposes to access the entitlement (which may give rise to the risk of a General Protections claim under the Act).