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Circular 2018/3 - Family and Domestic Violence Leave: Changes to the National Employment Standards

1. On 6 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Bill was passed, providing 5 days unpaid Family and Domestic Violence Leave to all employees covered by the Fair Work Act 2009.

2. The legislative change follows a decision by the Fair Work Commission to insert 5 days of unpaid Family and Domestic Violence Leave into modern awards in mid-2018.

Family and domestic violence

3. Employees are able to access unpaid family and domestic violence leave if they are experiencing family and domestic violence, and need to do something to deal with the impact of family and domestic violence which is impractical to do outside of work hours. This could include make arrangements for their own safety or the safety of a close relative, urgent court appearances or accessing police services.

4. The text of the Bill defines ‘family and domestic violence’ as violent, threatening or other abusive behavior by a close relative of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

5. A ‘close relative’ of the employee is defined as a person who is a member of the employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Implications for Australian Government employers and employees

6. All employees covered by the Fair Work Act 2009, including all Australian Government employees, who are experiencing family and domestic violence are now entitled to this new leave type.

7. An eligible employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period. This leave does not accrue from year to year.

8. The leave is available in full to all employees experiencing family and domestic violence, including part time and casual employees.

9. The leave is a new minimum workplace entitlement applying to the whole community. It should not be viewed as a maximum entitlement where more generous support is available.

10. In practice, Australian Government employees already have access to generous paid leave that may be used by employees affected by family and domestic violence.

11. This includes access to paid personal/carer’s leave and paid or unpaid miscellaneous leave available through enterprise agreements and supported by agency policies. This also includes access to flexible working arrangements, employee assistance programs and assistance with personal security.

12. Agencies should continue to provide the maximum appropriate support to employees affected by family and domestic violence.

13. Agencies must also take steps to ensure employee information, including leave requests or the evidence to support a request, are treated confidentially.

Implications for Bargaining

14. The Workplace Bargaining Policy 2018 encourages agencies to put policies and practices in place that provide the maximum support available for employees affected by family and domestic violence. Agencies can insert clauses into new enterprise agreements to highlight the support available to employees.

15. When deciding whether to approve an enterprise agreement, the Fair Work Commission may require agencies to make undertakings to include a separate leave type for family and domestic violence leave.

16. To anticipate this requirement, and reflect other entitlements available to employees in the National Employment Standards (NES), it is recommended that all agencies insert a National Employment Standards precedence term into new enterprise agreements. Such a clause would reflect the minimum requirement under law.

Information and advice

17. The APSC encourages agencies to adopt a holistic approach in supporting employees affected by family and domestic violence. This includes providing access to flexible working arrangements, employee assistance programs and employee safety plans. A template Domestic and Family Violence Policy is available on the APSC’s website.

18. Additional information on the Government’s domestic or family violence leave policy is available on the Australian Public Service Commission’s website or by contacting your APSC relationship manager. Inquiries may also be directed to workplacerelations [at] apsc.gov.au.