Family and Domestic Violence leave entitlements have been inserted into 122 Modern Awards including the Educational Services (Teachers) Award 2010 and the Educational Services (Schools) General Staff Award 2010. The unpaid leave provisions commenced from the first full pay period on or after 1 August 2018 and only apply to employees (including casuals) covered by a Modern Award. The leave does not apply to employees covered by the MEAs or Award and Agreement-free employees.

However, the entitlement may affect future negotiations of MEAs with Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, stating in a media release that the Government will “introduce legislation as soon as possible to extend the same entitlement to family and domestic violence leave for up to a further six million employees covered by the Fair Work Act”.

Entitlement to the leave

The key components of the leave are:

  • 5 days’ of unpaid family and domestic violence leave are available to all employees (including casuals);
  • The 5 days of leave will be available in full at the beginning of each 12 months’ of employment and do not accrue;
  • The 5 days of leave do not accumulate from year to year;
  • The leave is not be pro-rated for part-time or casual employees; and
  • The leave does not count as service but does not break an employee’s continuous service.

Taking the leave

The new provisions define family and domestic violence leave as “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.” An employee may take the leave if the employee:

      (a) is experiencing family and domestic violence; and

      (b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do this outside their ordinary hours of work.

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. A period of leave to deal with family and domestic violence may be less than a day by agreement between the school and the employee. Schools may also agree that the employee may take more than 5 days’ unpaid leave.

Notice and evidence

Employees must provide notice of the leave (which may be after the leave has started) and must notify the school of the period (or expected period) of the leave. Schools may require an employee to provide evidence of the leave. This may include a document issued by the police service, a Court, a family violence support service or a statutory declaration.

Confidentiality

Under the new provisions, schools must take steps to ensure information concerning any notice or evidence provided is treated confidentially as far as it is reasonably practicable to do so. The only exception for schools is where the disclosure is required by law or is necessary to protect the life, health or safety of the employee or another person.