Domestic Violence Leave for Workers – Employers Take Note

Recently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.

In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”

The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.

The key elements of the incoming domestic violence leave are as follows;

The Leave will be unpaid;

The entitlement is up to 5 days leave annually;

It will apply to all employees including full time casuals and part-time employees;

The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;

The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.

The change to the modern awards is significant and will require employers to review and update their policies and procedures.

Everingham Solomons has the specialist skills to be able to assist in the implementation of new or the updating of existing policies in respect to Domestic Violence Leave and other workplace policies because at Everingham Solomons, Helping You is Our Business.

Pro Rata Long Service – George Hoddle

GRHUpon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.

The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”

To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;

Was the reason claimed for termination one which fell within the section?

Was the reason generally held by the worker not simply colourable or a rationalisation?

Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?

Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?

When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.

Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.