Update on unpaid family and domestic violence leave, and flexible working arrangements

In brief

Since December 2018, all employees are entitled to unpaid family and domestic violence leave under the NES. Employers should also be aware of the new modern award requirements to discuss flexible working arrangements with employees. Senior Associate Tegan Ayling reports.

How does it affect you?

• From 12 December 2018, all employees, including casuals and part-time employees, are entitled to unpaid family and domestic violence leave under the NES.
• From 1 December 2018, an employer who receives a request for flexible working arrangements from an award-covered employee must discuss it, and genuinely try to reach agreement, with the employee before responding in writing to the request within the 21-day timeframe.

The changes

Domestic violence leave

Early last year, we saw unpaid family and domestic violence leave become a modern award entitlement for award-covered employees. Now, all employees – including those not covered by an award – are entitled to five days' unpaid family and domestic violence leave per year under the NES. The NES entitlement is consistent with the modern award entitlement, which we reported on in our Are your employees entitled to unpaid family and domestic violence leave?

Procedural changes to managing a flexible working request

The FWC introduced changes to modern awards, to require an employer who receives a request from an award-covered employee for a flexible working arrangement (eg a change to hours or location) to take additional steps. From 1 December 2018, the employer must now:

• discuss the request with the employee; and
• try to reach agreement with the employee, taking into account their needs, the consequences if there is no change, and any reasonable business grounds the employer has for refusing the request,

before responding in writing to the request. While the changes do not specify when the discussion must occur, since the employer is still required to respond to the request in writing within 21 days of receiving the request, the discussion would need to occur within that time.