Global Compliance Desk – Australia

New Family and Domestic Violence Leave Introduced

On December 12, 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 took effect. The Fair Work Act 2009 now includes an entitlement to unpaid family and domestic violence leave as part of the National Employment Standards (NES). 

Definitions

Family and domestic violence mean violent, threatening or other abusive behaviors by an employee’s close relative that:

  • Seeks to coerce or control the employee;
  • Causes them harm or fear.

A close relative is:

  • An employee’s, spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, sibling;
  • A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules. 

Duration of Leave 

All employees (including part-time and casual employees) are entitled to 5 days unpaid family and domestic violence leave each year.

Eligibility 

This entitlement applies to all employees (including part-time and casual employees). It applies from December 12, 2018. Employees covered by registered agreements, enterprise awards or state reference public sector awards may still be entitled to other paid or unpaid entitlements in their award or agreement that they can access in these circumstances. If the award or agreement provides less than the minimum entitlement in the NES, the NES entitlement still applies.

 

Long Service Leave Legislation 

The Victorian Parliament has enacted new long service leave legislation which will take effect on or before 1 November 2018, and replace the existing Long Service Leave Act 1992. All Victorian employers need to be aware of the changes in the implementation of the New Act makes to long service leave (LSL) entitlements.

However, the LSL Act 2018 will not apply to certain employees who are covered by federal enterprise agreements or pre-reform awards, or by other Victorian legislation that includes long service leave entitlements, e.g. the Construction Industry Long Service Leave Act 1997 administered by CoINVEST for workers in the construction industry.

Entitlement to take Leave after 7 years 

Employees are entitled to take long service leave after a minimum of 7 years continuous employment. The amount of leave an employee is entitled to take is calculated on one-sixtieth of the period of employment, i.e. number of weeks employment divided by 60 equals the number of weeks entitlement.

Taking Leave 

An employee can request to take long service leave at any time after 7 years continuous employment. The employer must grant the leave as soon as practicable following the employee’s request unless the employer has ‘reasonable business grounds’ for refusing the request. Previously an employee had to work a minimum of 10 years to be entitled to take leave. Disputes over the timing of the taking of leave can be referred to the Industrial Division of the Magistrates’ Court, either by the employer or the employee.

An employer may direct an employee to take leave by giving at least 12 weeks’ written notice. If the employee does not want to take their leave at the time nominated by the employer, they can apply to the Industrial Division of the Magistrates’ Court.

Period of Leave 

Long service leave can be taken for any period of one day or more. It could be taken all at once or for any period of not less than one day at a time. 

Long Service Leave at Half Pay 

An employee can request to take a period of long service leave for twice as long as the period to which they are entitled, at half their ordinary pay. Long service leave does not include any public holiday occurring, or annual leave taken, during the period when the long service leave is taken.

Treating Parental Leave the Same as Other Forms of Leave 

The Current Act treats parental leave less favorably than other forms of leave. The New Act provides that all forms of “paid” leave (including parental leave) count towards an employee’s continuous service. In addition to this, any period of unpaid leave (including but not limited to parental leave) up to 52 weeks also counts as service and any additional unpaid leave which exceeds 52 weeks which the employer and employee agree on). The other benefit to employees arising under the New Act is that any period of unpaid leave beyond 52 weeks, while it will not count towards service, will not break the continuity of employment.

 

Shreya Bhattacharya
ABOUT THE AUTHOR
Shreya Bhattacharya
A labor and employment lawyer at Replicon who specializes in global compliance. Replicon provides award-winning products that make it easy to manage your workforce. Replicon is an industry leader in global compliance and has a dedicated team which pro-actively monitors international labor regulations for ensuring proper adherence with specific country rule requirements.
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