Fair Work Releases Final Domestic Violence Clause
The Fair Work Commission has released a final version of the domestic violence leave clause that will be inserted into all modern awards.
It is intended the new entitlement will take effect from 1 August 2018.
The key elements of the clause are:
- there will be an entitlement to five days leave
- that leave will be unpaid
- it will apply to all employees including casuals
- leave will be available, in full, at the beginning of each 12-month period; it will not accrue progressively
- it will not accumulate year from year
- leave will be available, in full, to part-time and casual employees i.e. it will not be offered on a pro-rata basis.
A draft determination varying all modern awards to include the model term will “be issued shortly,” according to the Fair Work Commission. Interested parties will then have 14 days to comment on the draft variation. See Link Below Draft Determination
Should members require further information, assistance and or support feel free to contact the THA by phone or send an email to Merv Saltmarsh ER Business Improvement Manager firstname.lastname@example.org, or mobile direct on 0407 869 924.
Members can also have access to all of our services and much more, including the member’s area of the THA website.
THA will provide further information when the awards are varied to reflect the determination and commencement date.
The proposed variation clause is as follows:
Leave to deal with family and domestic violence: model term
X.1 This clause applies to all employees, including casuals.
- (a) In this clause, family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.
- Family member means:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules
- A reference to a spouse or de facto partner in the definition of family member in clause X.2(a) includes a former spouse or de facto partner.
X.3 Entitlement to unpaid leave
- An employee is entitled to five days’ unpaid leave to deal with family and domestic violence, as follows:
- the leave is available in full at the start of each 12-month period of the employee’s employment; and
- the leave does not accumulate from year to year; and
- is available in full to part-time and casual employees.
Note: A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.
- The employer and employee may agree that the employee may take more than five days’ unpaid leave to deal with family and domestic violence.
X.4 Taking unpaid leave
- An employee may take unpaid leave to deal with family and domestic violence if the employee:
- is experiencing family and domestic violence; and
- 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.
Note: The reasons for which 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.
X.5 Service and continuity
- The time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.
X.6 Notice and evidence requirements
- An employee must give their employer notice of the taking of leave by the employee under clause X. The notice:
- must be given to the employer as soon as practicable (which may be a time after the leave has started); and
- must advise the employer of the period, or expected period, of the leave.
- An employee who has given their employer notice of the taking of leave under clause X must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause X.4.
Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.
- Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X.6 is treated confidentially, as far as it is reasonably practicable to do so.
- Nothing in clause X prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.
Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.
- An employee is not entitled to take leave under clause X unless the employee complies with clause X.