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New leave entitlement in Modern Awards

As you may already be aware, the modern awards will be varied from today, 1 August 2018, to include unpaid family and domestic violence leave. The entitlement will be up to 5 days unpaid leave and is available to all award covered employees, including casual employees and will be accessible irrespective of service.

This leave will be available from the first full pay period on or after 1 August 2018. The leave will at this stage only be accessible to (and a compulsory entitlement for) employees covered by a modern award, unless your business was minded to introduce it across the board to award free employees.

This leave will be available from the commencement of each year of an employee's employment and will not accumulate from year to year like other leave. Further, it will not be pro-rated for part-time employees. Employees and your business can also agree to more than 5 days of such leave as well, which is in line with your business discretion to offer more leave without pay in certain circumstances.

Employees may access this unpaid leave irrespective of whether they have paid leave available to them. There will be a few key things for your payroll provider to be aware of, including that such leave will not count as service (same as leave without pay), but it will not break continuity of service.

As with other leave, employees must notify your business of their need to take such leave as soon as practicable (which could be after the commencement of such leave) and your business will be entitled to request evidence for the need to take such leave. Importantly, there are obligations to ensure that the taking of such leave (and any evidence) is kept confidential, so you may need to have a HR protocol in place regarding who needs to know an employee is taking such leave or an appropriate leave form that is directed and signed off by HR rather than the supervisor/manager if an employee is not comfortable disclosing it to their supervisor/manager.

IR Legal Solutions can assist in drafting relevant employment contract clauses, broader leave policies or even internal guidance notes to manage this new leave type, to ensure your business is compliant with these new entitlements and obligations.

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