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National Employment Standards Update to Include Unpaid Domestic Violence Leave

Domestic violence leave

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 has been passed by the Federal Government, providing employees with the right to five days’ unpaid family and domestic violence leave in the National Employment Standards (‘NES’) from 12 December 2018.

Unpaid family and domestic violence leave under the NES is available where an employee:

  • is experiencing family and domestic violence;
  • needs to deal with the impact of the family and domestic violence; and
  • cannot attend to the issues outside ordinary work hours.

The leave can be used by the employee to make safety arrangements for themselves or a family member (including relocation), attending urgent court hearings, or accessing police services.

What is considered domestic violence?

The NES 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 that causes the employee harm or to be fearful’.

The definition of ‘a close relative of the employee’ includes:

  • a member of the employee’s immediate family (e.g. a spouse, de facto partner or parent of the
  • employee or the employee’s spouse or de facto partner)
  • a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Features of domestic violence leave

The entitlement has these features:

  • no minimum length of service is needed before the employee may have the leave;
  • the leave is available in full at the start of each 12-month period of the employee’s employment but does not accumulate from year to year;
  • the leave can be taken by full-time, part-time or casual employees;
  • the leave can be taken as part-days, and an agreement can be reached with an employer for over five days’ leave;
  • an employee must give their employer notice of their intention to take the leave and provide evidence, where requested, that would satisfy a reasonable person that the leave is taken for
  • the purpose specified; and
  • employers must try to ensure information about any notice an employee has given, or any evidence an employee has provided, about the leave is treated confidentially.

The entitlement also applies to employees whose employment started before the commencement of the unpaid family and domestic violence leave under the NES. Here, the 12 month period starts on the date of assent and ends 12 months after assent.


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Please note that this article has been prepared by Margaret Miller, partner of Bell Legal Group, for information purposes only. It is not legal advice nor should it be relied upon as such.