- As of 12 December 2018, employees are now entitled to apply for unpaid Family
and Domestic Violence Leave;
- The unpaid Family and Domestic Violence Leave has now been incorporated into
the National Employment Standards;
- Potential claims can arise from a failure by employers to provide unpaid Family
and Domestic Violence Leave including a breach of the National Employment
Standards and General Protections Provisions of the Fair Work Act 2009 (Cth);
- Employers need to ensure that their contracts of employment and policies are
consistent with the new National Employment Standard.
As from 12 December 2018, a new entitlement of five (5) days’ unpaid Family and
Domestic Violence Leave has become available to employees as part of the National
Employment Standard (NES). This change is the result of the Fair Work Amendment
(Family and Domestic Violence Leave) Act 2018 (Cth) coming into effect. Previously this
leave was available only to employees covered by a modern award or at the discretion
of the employer.
Why was Family and Domestic Violence Leave introduced?
The entitlement was introduced by Parliament as recognition of the major impact family
and domestic violence has on the community and workforce participation with
P a g e | 2
employees needing to take time off work to deal with the impact of family and domestic
Who Does the Leave Apply To?
The leave applies to all types of employees (including part-time and casuals) and is
available in full at the commencement of each 12-month period, rather than accruing
through the year. The leave does not accumulate from year to year.
When Can the Leave Be Taken?
All employees will be entitled to take unpaid family and domestic violence leave if they
need to deal with the impacts of family and domestic violence, and it is impractical to do
so outside of their ordinary hours of work.
Family and domestic violence is defined as violence, threatening or otherwise abusive
behavior by a close relative of an employee that seeks to coerce or control the
employee, and causes the employee harm or to be fearful.
Examples of situations in which an employee may need to deal with the impact of family
and domestic violence include arranging for the safety of the employee or a close
relative, attending urgent court hearings, or accessing police services.
Important Considerations for Employers
Employers should be aware that an unreasonable failure to provide an employee with
Family and Domestic Violence Leave may be considered a breach of the National
Employment Standard and can result in prosecutions and penalties for the employer.
While employers can ask for an employee to provide evidence as to whether the leave
was taken to deal with family and domestic violence, any such request for evidence
needs to be reasonable, and an employer is required to keep such information
confidential (as far as reasonably practicable).
Additionally, a request by an employee for leave is an exercise of a workplace right, and
if an employee is treated adversely for making such a request, an employer will be in
breach of the General Protections provision of the Fair Work Act 2009 (Cth).
P a g e | 3
How Can We Assist You?
We are committed to working with our clients to tailor our delivery of services on different
levels. We can assist by provision of advice on the implications of this change in
legislation providing for unpaid Family and Domestic Violence Leave which has now
become part of the National Employment Standards.
Please contact us on (02) 9191 9293 or email@example.com if you require assistance in
reviewing your contracts of employment or workplace policies and procedures