Last week the Federal Parliament passed legislation amending the National Employment Standards to include the right to take up to five days' of unpaid family and domestic violence leave (FDV Leave). The new entitlement to FDV Leave takes effect on Wednesday 12 December 2018, being the day after the Act received Royal Assent.

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 was passed on 6 December 2018 following a decision of a Full Bench of the Fair Work Commission last year, which ruled in favour of unpaid leave for workers covered by modern awards. A model clause was incorporated into modern awards in July 2018.

While the model clause only covered employees whose employment was covered by a modern award, the new legislation will apply to any employee whose employment is covered by the Fair Work Act 2009 (Cth).

What is the FDV Leave Entitlement? 
The new entitlement:

• provides for five days' of unpaid FDV Leave in a 12 month period
• applies to Casual and part-time employees as well as full time employees
• does not accrue throughout the year and does not accumulate from year to year
• can be accessed in full from the commencement of each 12 month period.

FDV Leave can be taken in a single continuous five day period or in separate periods, including separate periods of less than one day where the employer and employee agree. The entitlement to FDV Leave may be increased by agreement between the employer and employee.

What is Family and Domestic Violence? 

The new section 106B provides that FDV Leave can be taken in circumstances where the employee is experiencing family and domestic violence and needs to do something to deal with the impact of that violence, and it is impractical for the employee to deal with the impact of the violence outside of the employee's ordinary hours of work. Family and domestic violence is defined as violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful. It is important for employers to note that an employee does not need to be experiencing physical violence or abuse in order to be experiencing family and domestic violence.

The entitlement to take FDV Leave extends to circumstances where a close relative of the employee is the person experiencing the family and domestic violence, and the employee needs to take leave to assist that close relative. Close relative is defined in the section 106B as a member of the employee's immediate family, or a person who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. 

What are the Notice and Evidence Requirements? 

Employees are required to provide notice that they intend to take FDV Leave as soon as practicable, and to inform the employer of how long they intend to take leave for (if known). Employers are entitled to request that an employee provide evidence that would satisfy a reasonable person that the leave is permissible in accordance with section 106B.

The legislation creates an obligation for employers to take steps to ensure information concerning any notice or evidence that an employee has given their employer as part of their request to take FDV Leave is treated confidentially, as far as is reasonably practical.