Employee entitlement to domestic violence leave commences for over 2.3 million Australians

Timothy Zahara, Lawyer, KPMG Law
Timothy Zahara, Manager, Commercial Law
James Simpson, Partner, Workplace & Employment Law

One in six (1.6 million) women have experienced physical and/or sexual violence by a cohabiting partner since age 15 and one in 16 (0.5 million) men*. It affects their ability to work and is a common cause of homelessness.

A report in 2015 by the Male Champions of Change called for business to support people experiencing domestic violence and as of 1 August 2018, over 2.3 million Australian employees, who are covered by modern awards, are now entitled to five days of unpaid family and domestic violence leave each year. The leave is intended to enable employees to be absent from work when they need to deal with the impact of family and domestic violence.

Employers must now ensure they have appropriate processes in place to enable employees to access this new entitlement.

Who is entitled to take family and domestic violence leave?

At this stage, the entitlement applies to all employees who are covered by any of the 122 modern awards, including casual and part-time employees. This includes employees who are engaged on an individual written agreement but are concurrently covered by a modern award.

In some circumstances, employees covered by enterprise agreements that incorporate a modern award may also become entitled to take unpaid domestic and family violence leave.

How does it work?

An employee’s entitlement to unpaid family and domestic violence leave:

  • is available in full at the commencement of each 12 month period (i.e. it does not accrue throughout the course of the year);
  • does not accumulate from year to year; and
  • is available in full to part-time and casual employees (i.e. not pro-rated).

Employees are entitled to take family and domestic leave if they:

  • are experiencing family and domestic violence;
  • need to do something to deal with the impact of the family and domestic violence (e.g. making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services); and
  • it is impractical for the employee to do that thing outside their ordinary hours of work.

Employees must give as much notice as is practicable in taking leave (although this can be after the leave has commenced). An employer may require the employee to provide reasonable evidence of the leave (e.g. a document issued by the police service, a court or a family violence support service, or a statutory declaration).

Potential extension to all employees

The government announced in March its intention to introduce legislation to amend the Fair Work Act 2009 (Cth) providing almost all employees in Australia with an entitlement to unpaid family and domestic violence leave on the same basis as is now available to award-covered employees. To date, no such legislation has been introduced.

Additionally, the Fair Work Commission (FWC) has proposed to revisit this issue in June 2021, after family and domestic violence leave has been in operation for three years. At that time, the FWC will consider whether any changes are needed, will also revisit the question of whether provisions should be made for paid family and domestic violence leave.

* Family, domestic and sexual violence in Australia 2018

KPMG Australia offers paid domestic violence leave to all its employees.

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