From 1 August 2018, all employees on modern awards will be entitled to access 5 days’ unpaid family and domestic violence leave each year.

The change follows a recent decision of the Fair Work Commission in March 2018 in which Vice President Watson said ‘There can also be no doubt that employers should be aware of [family and domestic violence] and adopt approaches that assist affected employees and limit the impact of the problem on their business.’

If an employee is experiencing family and domestic violence or 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, they will be entitled to take unpaid leave under this new arrangement.

The reasons 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.

Are your employees entitled to the new unpaid family and domestic violence leave?

This new leave applies to all employees (including casuals) who are regulated by industry awards and will be available in full to part-time and casual employees, regardless of their pro-rata working hours.

Those who are covered by Enterprise Awards, public sector awards or Enterprise Bargaining Agreements, as well as those who are award and agreement free, are not entitled to the new leave.

How will this new leave operate?

Employees will have access to 5 days’ unpaid leave in full at the start of each 12 month period, as opposed to other leave formats which accrue progressively throughout the year of service. The leave will not accrue year to year.

The Fair Work Commission made clear that employees will not be required to access or exhaust any paid leave entitlements before accessing unpaid family and domestic violence leave.

What evidence can I request from my employees?

The employee must give the employer notice as soon as practicable (which does not have to be before the leave has started) of the requirement for the unpaid leave and advise of the period, or expected period, of leave. The employer can then require the employee produce evidence that the leave is taken for the purposes discussed above. This evidence can include documents issued by the police service, a court or a family violence support service, or a statutory declaration.

If you’re unsure what you need to do when your employee requests unpaid family and domestic violence leave, or what type of leave your employee should be taking, get in contact with one of our team today.