Unpaid victims leave entitlement in NSW

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Unpaid victims leave entitlement in NSW

Due to commence upon Royal Assent, the Industrial Relations Amendment (Leave for Victims of Crime) Act 2001 (NSW) was assented to on 19 June 2001.

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Due to commence upon Royal Assent, the Industrial Relations Amendment (Leave for Victims of Crime) Act 2001 (NSW) was assented to on 19 June 2001. The new Act amends the Industrial Relations Act 1996(NSW) and applies to all New South Wales employees, including part-time employees and casual employees. The amendments to the principal Act are encapsulated in the new Part 4B inserted into Chapter 2 of the Act.

The object of the amendment Act is to give employees who are victims of violent crime an entitlement to unpaid leave to attend court proceedings related to the offence. The new sec 72AC of the principal Act provides that:

'An employee who is a victim of crime is entitled to unpaid victims leave in connection with court proceedings relating to the violent crime...'.

Definitions

The new legislation defines a victim of crime as:

  • a person who suffers physical bodily harm, mental illness or nervous shock as a direct result of an alleged serious indictable offence that involves violence (this includes sexual or indecent assault);
  • the parent, grandparent or guardian of a child (under the age of 18 at the time the leave is taken) who suffers physical bodily harm, mental illness or nervous shock as a direct result of an alleged serious indictable offence that involves violence (this includes sexual or indecent assault) a member of the immediate family of a person who dies as a direct result of a serious indictable offence that involves violence.

An immediate family member is afforded a broad definition that factors in:

  1. a spouse;
  2. a de facto partner (within the meaning of the Property (Relationships) Act 1984);
  3. a parent or guardian, or step-parent;
  4. a grandparent or step-grandparent;
  5. a child or step-child
  6. a grandchild or step-grandchild
  7. a brother, sister, step-brother or step-sister.

The type of court proceedings for which victim leave may be granted include:

  • committal proceedings;
  • sentencing proceedings;
  • proceedings on appeal;
  • proceedings on a back up offence; and
  • any other proceedings prescribed by the regulations.
Purpose of victims leave

Pursuant to the new sec 72AD victims leave may be taken to allow the relevant employee to attend court proceedings regardless of whether or not they are in attendance as a witness. Furthermore, victims leave may be extended to incorporate travel time required to attend court proceedings in instances when the victim as defined in the Act, resides more than 100km from where the proceedings are being held. When a court proceeding is scheduled for a part of a day, or without prior notice to the employee fail to proceed on the scheduled day, the victim may pursuant to sec 72AD(2) take leave for a full working day.

Notification required by employer

If possible the employee is required by sec 72AE to provide the employer at least one week's notice of the intention to take victims leave. Section 72AE(1)(b) provides that an employer may request the employee to provide a certificate from a police officer or prosecutor that confirms the employee as the victim of a crime within the meaning of the Industrial Relations Act 1996. The certificate may also need to specify the date or dates on which court proceedings are scheduled.

Continuity of service

Section 72AG(1) provides that victims leave does not break an employee's continuity of service. However, any period of leave in excess of 3 months will not be taken into account for any purpose in calculating an employee's period of service.

The amendments to the principal Act represent the minimum entitlements of employees to victims leave. The provision of victims leave commenced on or after 19 June 2001 and extends in application to cover violent crimes committed before or after 19 June 2001.

 

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