Family and Domestic Violence Leave entitlements now incorporated into Modern Awards

By Cilla Robinson, Caitlin Ford

02 Aug 2018

Leave policies, employment contracts, and other internal documents and processes could need amendment now that Family and Domestic Violence Leave terms have been incorporated into all Modern Awards.

With effect from Wednesday 1 August 2018, model Family and Domestic Violence (FDV) Leave terms have been incorporated into all Modern Awards.  This means that from the first full pay period on or after 1 August 2018, Award covered employees may take unpaid leave to deal with FDV matter.

What is the entitlement?

Employees who are covered by a Modern Award are entitled to five days of unpaid FDV Leave per annum.  FDV means violent, threatening or other abusive behaviour by an employee's family member that:

  • seeks to coerce or control the employee; or
  • causes them harm or fear.

Employees are entitled to take FDV Leave if they need to deal with the impact of FDV and it is impractical to do so outside their ordinary hours of work.

FDV Leave is available to employees (in full) at the start of each 12 month period of the employee's employment (ie. it does not accrue incrementally throughout the year). FDV Leave does not accumulate from year to year and is available in full to part time and casual employees (ie. not pro-rated).  Employees are not required to utilise other available paid leave before accessing FDV leave, but they may elect to utilise paid leave personal leave to attend to FDV matters.

How do I know if it applies to my business?

The FDV Leave entitlement applies to employees (including casual employees) who are covered by a Modern Award.  The FDV Leave entitlement does not apply to employees who are:

  • covered by Enterprise Awards;
  • covered by State Reference Public Sector Awards;
  • covered by Enterprise and Other Registered Agreements; and
  • award an agreement free.

Applicable instruments may of course be amended to reflect the Modern Award position regarding FDV Leave. 

What can you do?

  1. Determine whether any Modern Awards apply to your employees;
  2. If yes, consider the incorporation of FDV Leave terms into your leave policies and/or employment contracts;
  3. Establish protocols and procedures for managing FDV Leave, to ensure compliance with the notice, evidentiary and confidentiality terms contained in the Modern Awards;
  4. Ensure your employees are aware of their entitlement to take FDV Leave, the procedure for doing so and where possible other supports are available to the affected employee, such as an Employee Assistance Program; and
  5. Consider establishing a FDV Leave Policy which provides for paid and/or unpaid FDV Leave in excess of the minimum entitlement under applicable Modern Awards.

For assistance in addressing these questions and ensuring your Company is compliant with the changes please contact Clayton Utz's Workplace Relations, Employment and Safety team.

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