In 2018, all employees covered under awards, the Fair Work Act 2009 (the FW Act) and the National Employment Standards (NES) were granted unpaid family and domestic violence leave. This provided the entitlement to casuals, part-time and full-time employees. Australia has staggering statistics for domestic violence and abuse, particularly amongst women who average one death a day in this country.
While there are some differences between the Model Clause and the amended NES entitlements of the FW Act, the intent of the provisions is the same. Employees can take five days unpaid family and domestic violence leave, in each 12-month period and cannot be accumulated.
A key difference between the FW Act and the Model Clause is that the NES provides that family and domestic violence leave can only be taken if its ‘impractical to do so outside of work hours’. While the wording between the clauses are minor, the inconsistency puts an additional requirement on employees. Employees may need to prove that the ‘task’ or ‘activity’ that they needed to conduct had to be completed during work hours, this can be difficult when presenting evidence or giving notice to employers. For example, an employee might need to present evidence that they could not relocate outside of work hours.
Another difference between the Model Clause and the FW Act is provisions around confidentiality. The requirement for confidentiality of all employee information under the FW Act is covered by the Privacy Act. The Model Clause provides that an employer is responsible for ensuring that any information that is shared by an employee in these circumstances is protected. The Awards themselves do not note the involvement of the Privacy Act, however employers must ensure they have adequate polices in place to protect the confidentiality of family and domestic violence information revealed by employees.
In contrast, New Zealand implemented substantial paid leave entitlements for victims of domestic violence in April 2019, along with a number of other provisions. Providing employees time to seek necessary supports and services assists in addressing one of the most scarring issues facing our communities.
The Fair Work Commission will undertake a review of unpaid family and domestic violence leave entitlements in 2021. Particular interest will be the uptake of the unpaid family and domestic violence leave entitlements versus employees who take paid personal and carer’s leave. It will then be determined whether any changes to leave entitlements are required.
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