An overview of employment matters that have changed recently.
FAMILY & DOMESTIC VIOLENCE LEAVE NOW IN AWARDS
Many modern awards have been varied with an effective date of 1 August 2018 to include an entitlement to unpaid Family & Domestic Violence Leave. This includes the Timber Industry Award 2010, the Clerks Private Sector Award 2010, the General Retail Industry Award 2010, and the Road Transport and Distribution Award 2010.
Employees covered by enterprise agreements will not be entitled to this leave unless the terms of the agreement allow for it, or expressly incorporate an award that has been varied.
The key points to remember are:
- 5 days of unpaid leave each year;
- Leave balance does not roll over into future years;
- Available in full from the start of each 12-month period of employment; and
- Applies to full time, part time and casual employees regardless of the number of hours worked each week.
What is Family and Domestic Violence?
Family and Domestic Violence means 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. This new unpaid leave entitlement is an opportunity for employees to exercise a right to time off work to deal with the consequences of this violence.
Who is a family member?
The award defines ‘family member’ as:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
A reference to a spouse or de facto partner in this context includes a former spouse or de facto partner.
What are the reasons an employee might take this type of leave?
An employee who is experiencing family and domestic violence can take the leave to do something to deal with the impact of the violence, and it is impractical to take these actions outside ordinary hours of work.
Examples of 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, arranging for children to change schools, or accessing police services.
Employees are not required to use paid leave entitlements prior to accessing this unpaid leave.
What does an employee need to do to take family and domestic violence leave?
As soon as practicable, which can be after the leave has started, an employee has to give their employer notice that they will be taking leave. The employee needs to tell the employer how long they expect to be away.
An employer can require evidence that would satisfy a reasonable person that the leave was taken for the stated purpose. This evidence might include a document issued by the police service, a court or a family violence support service, or a statutory declaration.
The employer must treat this information as confidential, although it may be disclosed if required by law, or if necessary to protect someone’s health or safety. The employer should talk to the employee about how this information is handled, as errors can have dire consequences for the employee experiencing family or domestic violence.
HOW MUCH PERSONAL/CARER’S LEAVE DO EMPLOYEES ACCRUE?
The National Employment Standards (NES) allow for full time employees to accrue 10 days’ personal/carer’s leave over the course of 12 months of continuous service, and this leave is cumulative. Usually this is interpreted as 76 hours of leave, because the NES also provides for employees to work a maximum of 38 ordinary hours a week.
A recent decision of the Fair Work Commission (FWC) in a dispute about an enterprise agreement has created a conundrum and uncertainty. The FWC decided that because the entitlement is expressed as “10 days”, employees who work a non-standard or varying work pattern may be entitled to more leave than someone who works a standard 7.6 hour day.
In the AstraZeneca case, employees have three shift patterns – Roster 1 works 3 x 12 hour shifts per week; Roster 2 works 7 x 10.28 hour shifts per fortnight, and Roster 3 works 19 x 8 hour shifts over four weeks.
The FWC has decided that Roster 1 employees are entitled to 10 days of personal leave at 12 hours per day (120 hours per year); Roster 2 employees are entitled 10 days at 10.28 hours per day (102.8 hours per year), and roster 3 employees are entitled to 10 days at 8 hours per day (80 hours per year).
NEW FAIR WORK INFORMATION STATEMENT
Since 2009, the National Employment Standards have required that national system employers give all new employees a Fair Work Information Statement (FWIS) before, or as soon as possible after, they start work.
A new FWIS has been released, and all employers need to use the updated Statement, which can be downloaded from the Fair Work Ombudsman (www.fairwork.gov.au).
The information in this article applies to all private sector businesses except sole traders and partnerships in WA.