On 12 December 2018, changes were introduced to the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 providing five days of unpaid family and domestic violence leave in each 12-month period.
The entitlement of five days of unpaid family and domestic violence leave was introduced to all modern awards on 1 August 2018 as part of the four-yearly review. However, the new modern award provisions only applied to employees covered by those awards, which meant that workers that were not on any award were unable to claim this entitlement.
The introduction of the five days of unpaid family and domestic violence leave in the National Employment Scheme (NES) provides consistency in entitlements for all employees covered by the Fair Work Act 2009.
All national system employees are now entitled to unpaid family and domestic violence leave including casual employees. The entitlement is available in full at the beginning of each 12-month period and does not need to accrue through the year. The entitlement for casual and part-time employees is not pro-rated and is available in full at the begging of each 12-month period. Employees are now able to access the unpaid leave to address domestic and family violence concerns when necessary and if it is impractical to do so outside their working hours.
The changes also require employers to ensure that information provided by an employee concerning the taking of unpaid family and domestic violence leave is treated confidentially as far as reasonably practicable. The exceptions to this obligation are as in other professions where a fiduciary duty of care exists to disclosure if it is necessary to protect the health or safety of the employee or another person or when disclosure is legally required.
Civil penalties apply for a contravention of the new NES entitlement of up to $630,000 for a serious contravention or otherwise up to $63,000. Employees who exercise the new workplace right to take unpaid family and domestic violence leave will also be protected from unlawful adverse action under the current general protection provisions of the Fair Work Act 2009.
