On 27 July 2018, the Fair Work Commission (Commission) issued a series of determinations inserting a clause providing for five days of unpaid domestic and family violence into all modern awards as of 1 August 2018. The government has also committed to introducing legislation as soon as possible to amend the Fair Work Act 2009 (Cth) to incorporate theses new leave provisions.

An employee may take the leave if they are:

  • experiencing family and domestic violence
  • need 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.

Examples given include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

Under the model clause, domestic violence is defined as ‘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 members include:

(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee

(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee

(c) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

The model clause has the following features:

  • No minimum length of service is needed before the employee is entitled to the leave.
  • The five days’ leave is available in full at the start of each 12-month period of the employee’s employment but does not accumulate from year to year.
  • It can be taken by full-time, part-time or casual employees.
  • It can be taken as part-days, and an agreement can be reached with an employer for more than five days’ leave.
  • An employee must give their employer notice of their intention to take the leave and provide evidence, where requested, that would satisfy a reasonable person that the leave is taken for the purpose specified.
  • Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided in connection with the leave, is treated confidentially, as far as it is reasonably practicable to do so.