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Update: Family and Domestic Violence Leave
Since 2018 employees have had an entitlement to unpaid Family and Domestic Violence (“FDV”) leave under modern awards and in accordance with the National Employment Standards (“NES”). This entitlement provides full-time, part-time and casual employees with five days of unpaid leave in a 12-month period (see our article here).
The Fair Work Commission (“FWC”) commenced a review of FDV leave in 2021 as part of its four yearly review of modern awards. In May 2022, the FWC made a provisional decision that modern awards should contain an entitlement to 10 days of paid FDV leave. The FWC’s decision is set out in the Family and Domestic Violence Leave Review 2021 (the “Review”).
The FWC is now in the process of finalising the new model paid FDV leave term which will be included in each modern award.
The characteristics of the model paid FDV leave term are set out in the Review and include:
- full-time and part-time employees (on a pro-rata basis) should be entitled to 10 days of paid FDV leave per year;
- the entitlement should accrue progressively (in the same way as personal/carer’s leave) subject to a cap so that total accrual does not exceed 10 days;
- the entitlement should be accessible in advance of accrual by agreement between an employer and employee; and
- the entitlement should be paid at an employee’s base rate of pay.
Interested parties will be given the opportunity to comment on the new model paid FDV leave term once it is finalised.
The Government is also expected to introduce legislation to provide employees with access to 10 days of paid FDV leave in accordance with the NES.
Who is eligible to claim FDV leave
The entitlement to paid FDV leave will be limited to full-time and part-time employees covered by a modern award.
Employees can take paid FDV leave if they are experiencing FDV, need to do something to deal with the impact of FDV and it is impractical to do that thing outside their ordinary hours of work. For example, attending court hearings, making arrangements for their safety or accessing police services.
Notice and evidence requirements
While the entitlement to paid FDV leave will be new, the notice and evidence requirements are likely to remain unchanged.
The current position in relation to notice is that an employee is required to give notice that they are taking FDV leave as soon as practicable and advise of the period, or expected period, of the leave. The employer can also require the employee to provide evidence that would satisfy a reasonable person that the employee took the FDV leave to deal with the impact of FDV. This evidence could include:
- documents issued by the police services;
- documents issued by a court;
- family violence support service documents; or
- a statutory declaration.
We will continue to provide updates in relation to amendments to modern awards and the NES concerning the entitlement to paid FDV leave.
Other Relevant Resources
17 September 2019
Chocolate Factory Workers Given Golden Ticket by Full Federal Court in Leave Test Case
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Employee or Independent Contractor? High Court Confirms the Importance of Contractual Terms
17 March 2022