Unpaid Domestic Violence Leave in National Employment Standards

Cooper Grace Ward Partner Belinda Winter, Partner Annie Smeaton, and Associate Sandra Barry discuss the introduction of unpaid family and domestic violence leave in the National Employment Standards, following the passing of the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018. They ask: What new entitlements are to be provided by the unpaid family and domestic violence leave? 

Annie will present on the topic, From Casual to Permanent – The Changing Landscape, at the 11th Annual Workplace Symposium on Wednesday, 13 March in Brisbane, where Belinda will also present on the topic, Managing Mental Illness in the Workplace. Annie will then present on the topic, Managing Ill and Injured Staff in the School Environment, at the School Law Summit on Wednesday, 20 March in Brisbane.

On 6 December 2018, the Federal Government passed the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018.

The passage of the Bill saw the inclusion of the right to take up to five days’ unpaid family and domestic violence leave in the National Employment Standards (NES) as of 12 December 2018.

WHAT NEW ENTITLEMENTS ARE TO BE PROVIDED BY THE UNPAID FAMILY AND DOMESTIC VIOLENCE LEAVE?

An employee may take unpaid family and domestic violence leave under the NES where:

• they are experiencing family and domestic violence
• they need to do something to deal with the impact of the family and domestic violence
• it is impractical for the employee to do that thing outside their ordinary hours of work.

This might include taking leave to make safety arrangements for themselves or a family member (including relocation), attending urgent court hearings, or accessing police services.

The NES defines family and domestic violence as ‘violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and that causes the employee harm or to be fearful’.

A close relative of the employee includes:

• a member of the employee’s immediate family (e.g. a spouse, de facto partner or parent etc. of the employee or the employee’s spouse or de facto partner)
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

The entitlement has the following features:

• no minimum length of service is needed before the employee is entitled to the leave
• the 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
• the leave can be taken by full-time, part-time or casual employees
• the leave 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 any evidence an employee has provided, in connection with the leave is treated confidentially, as far as reasonably practicable.

The entitlement will also apply to employees whose employment started before the commencement of the unpaid family and domestic violence leave under the NES. In this case, the 12 month period starts on the date of assent and ends 12 months after the date of assent.

Belinda Winter is a partner in the workplace relations and safety team, leading a team of seven and specialises in employment, industrial relations, discrimination and safety law. Belinda and her team provide strategic advice to employers about various matters including restructures, enforcing restraints of trade, managing long term ill and injured employees, employee misconduct, poor performance and effecting termination of employment. The team also provides assistance to clients managing industrial issues such as enterprise bargaining, right of entry and industrial action. Belinda and her team are experienced in conducting complex workplace investigations in response to safety related incidents or allegations of misconduct, as well as providing advice to clients about safety compliance matters. Belinda has been listed in Best Lawyers Australia for Labour and Employment every year since 2013. Belinda is a qualified Mental Health First Aid Instructor and runs frequent training for nominated workplace representatives. Contact Belinda at belinda.winter@cgw.com.au

Annie Smeaton has many years’ experience as an advocate with a strong background in employment, industrial, safety, education (including pre-enrolment and enrolment) and anti-discrimination law, Annie provides her employer clients with strong representation and practical commercial advice. Annie acts for large corporations and institutions as well as employers in the SMEs market and education and training, resources and energy, transport and logistics, manufacturing and professional services industries.  Annie acts for a range of independent schools, training institutions and institutions in the pre-university market.  Annie also undertakes employment and regulatory law work in the health sector. Annie has extensive experience undertaking complex workplace investigations concerning harassment, bullying and safety breaches. Contact Annie at Annie.Smeaton@cgw.com.au or connect via LinkedIn. 

Associate Sandra Barry provides advice and assistance to clients with regard to all aspects of employment, industrial law and safety. As an associate in Cooper Grace Ward’s workplace relations and safety team, Sandra advises a range of clients across various industries on issues such as compliance and duties under workplace health and safety legislation; unlawful discrimination and sexual harassment; the operation of employment contracts and restraint of trade provisions; independent contractor and employee distinctions; award and enterprise agreement applicability and provisions; dismissal risks and strategies; management of ill and injured employees; workers’ compensation claims; and general protections claims. Sandra is experienced in preparing employment and independent contractor agreements, letters of offer, deeds of settlement and release and workplace policies. She also has extensive experience with conducting workplace investigations, defending unfair and unlawful dismissal, general protections, workers’ compensation, workplace, health and safety, discrimination and harassment matters. Contact Sandra at sandra.barry@cgw.com.au or connect via LinkedIn.

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Disclaimer: This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like Cooper Grace Ward to advise you on arising from this publication, please let the author know.