Fair Work Amendment (Family and Domestic Violence Leave) Act 2018

The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 amended the Fair Work Act 2009 to create a new entitlement to unpaid family and domestic violence leave. It inserted a new subdivision into the National Employment Standards framework for national system employees.

The Act itself commenced on 12 December 2018, being the day after Royal Assent. From that point, covered employees had a statutory entitlement to 5 days of unpaid family and domestic violence leave in each 12 month period, subject to the conditions set out in the amended Fair Work Act.

This page explains the 2018 Act as enacted. It is focused on the unpaid leave entitlement introduced by that amendment.

The entitlement created by this Act applies to national system employees. In practice, that captures most private sector employees in Australia. If your business is a national system employer, this entitlement forms part of the minimum employment standards you must meet.

The Act makes clear that the entitlement is available in full to full-time, part-time and casual employees. It is not limited to permanent staff. It also contains a specific rule for casual employees and employees engaged for a specified period, task or season. For those workers, the start of employment with a particular employer is taken to be the start of the employee's first employment with that employer for the purpose of working out the 12 month period.

Not every Australian worker is necessarily covered. Because the entitlement is framed as an entitlement of national system employees, some State public sector and local government employees may fall outside it. If your organisation is not a typical private sector employer, you should confirm whether your workforce is in the national system before relying on this page.

An employee may take unpaid family and domestic violence leave only if all of the statutory conditions are met. First, the employee must be experiencing family and domestic violence. Second, the employee must need to do something to deal with the impact of that violence. Third, it must be impractical for the employee to do that thing outside the employee's ordinary hours of work.

That third requirement matters. The leave is not a general right to be absent whenever family and domestic violence exists in the background. The Act ties the entitlement to situations where the employee needs to take action and cannot practically do so outside work hours.

The Act gives examples of actions that may be covered. These include arranging for the safety of the employee or a close relative, including relocation, attending urgent court hearings, or accessing police services. These examples help show the kind of urgent or necessary steps the law had in mind.

The Act defines family and domestic violence 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. A close relative includes a member of the employee's immediate family, or a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

The entitlement introduced by this Act is 5 days of unpaid family and domestic violence leave in a 12 month period. It is unpaid. That is the specific entitlement created by the 2018 amendment.

The leave is available in full at the start of each 12 month period of the employee's employment. It does not build up progressively and it does not accumulate from year to year. If it is not used in one 12 month period, it does not carry over into the next.

The Act also states that the entitlement is available in full to part-time and casual employees. That means a part-time or casual employee does not receive a reduced pro rata amount under this Act.

The leave can be taken in different ways. An employee may take it as a single continuous 5 day period, as separate periods of one or more days each, or as any separate periods agreed between the employee and employer, including periods of less than one day. This gives businesses and employees some flexibility in handling urgent appointments, court attendances or safety arrangements.

The entitlement is connected to employment with a particular employer. The Act's rules about the start of employment are framed by reference to a particular employer, especially for casual, seasonal, task-based and specified-period employees. In practical terms, businesses should assess the entitlement separately for each employer relationship rather than assuming there is one pooled entitlement across all jobs a worker may hold.

The Act also says, to avoid doubt, that nothing prevents the employee and employer agreeing that the employee may take more than 5 days of unpaid leave to deal with the impact of family and domestic violence. That is an option by agreement, not a statutory minimum beyond the 5 days.

The Act links this leave to the existing notice and evidence framework in section 107 of the Fair Work Act. The employee must comply with those notice and evidence requirements when taking unpaid family and domestic violence leave.

For employers, that means you should have a process for receiving notice of the leave and, where appropriate, requesting evidence that would satisfy the statutory standard under the Fair Work Act. The amendment to section 107 specifically ties the evidence question to whether the employee is taking the leave for the required purpose and whether the impracticality requirement is met.

Confidentiality is a separate and important obligation. Employers must take steps to ensure information concerning any notice or evidence an employee has given for this leave is treated confidentially, as far as it is reasonably practicable to do so. This is not optional. It requires practical handling of records, communications and manager access.

The Act allows disclosure in limited circumstances. Information may be disclosed if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person. The Act also notes that personal information covered by this section may be regulated under the Privacy Act 1988.

The Act includes transitional and interaction rules for enterprise agreements made before the commencement of the amendment. On application by an employer, employee or employee organisation covered by such an agreement, the Fair Work Commission may make a determination varying the agreement to resolve an uncertainty or difficulty about how the agreement interacts with the unpaid family and domestic violence leave provisions, or to make the agreement operate effectively with them.

The Act also deals with State and Territory laws that provide leave for victims of crime. It says the unpaid family and domestic violence leave subdivision does not exclude or limit the operation of those laws. If an employee is entitled to leave for victims of crime under a State or Territory law and is also entitled to leave under this subdivision, that law applies in addition to the federal entitlement.

There is also a specific qualification for a person who is a national system employee only because of section 30C or 30M of the Fair Work Act. For those employees, the entitlement under this subdivision applies only to the extent that the leave would not constitute leave for victims of crime.

Businesses with older enterprise agreements or operations across multiple jurisdictions should check both the agreement terms and any relevant State or Territory leave rights before making assumptions about how entitlements overlap.

The Act received Royal Assent on 11 December 2018 and commenced on 12 December 2018. The legislation text states that the whole Act commenced on the day after Royal Assent.

The transitional rule for employees whose employment started before commencement treats the period from 12 December 2018 until the first anniversary of the employee's employment start date after commencement as a 12 month period for the purpose of the new entitlement. The Act includes a matching rule for casual employees and employees engaged for a specified period, task or season, using the start of the employee's first employment with that employer.

Because this page is about a specific amending Act, businesses should check whether later amendments to the Fair Work Act have changed the current position before using this page as a statement of today's entitlement settings.

Before relying on this page for a live workplace issue, confirm that your workforce is covered by the national system, check the current version of the Fair Work Act and any later amendments, and review any enterprise agreement or workplace policy that may interact with the statutory entitlement.

You should also check whether the employee works for more than one employer, because the entitlement should be assessed in the context of the employment relationship with your business. If your organisation is in the public sector, local government, or another area where coverage can differ, confirm jurisdiction carefully.

For day-to-day compliance, make sure your managers understand the statutory trigger points, especially that the employee must need to deal with the impact of family and domestic violence and it must be impractical to do so outside ordinary work hours. Keep request handling confidential and aligned with the Fair Work Act notice and evidence rules.