Paid family and domestic violence leave ruling

The Fair Work Commission (FWC) has ruled that modern awards should be varied to include an entitlement for up to 10 days of paid family and domestic violence leave for full-time and part-time employees who experience such violence.

What is the current entitlement?

Currently, all employees (including casuals) are entitled to 5 days of unpaid family and domestic violence leave each year. This entitlement comes from the National Employment Standards (NES) in the Fair Work Act (FW Act).

An employee can access this entitlement if they experience violent, threatening, or other abusive behaviour by a close relative that seeks to coerce or control the employee or causes them harm or fear. A close relative of the employee is someone in their immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Background to the Family and Domestic Violence Leave review

A Full Bench of the FWC has ruled that modern awards should be varied to provide for paid family and domestic violence leave (FDV leave) and additional unpaid FDV leave.

FDV affects many people and increased during the COVID-19 pandemic. It has a significant effect on those who experience it as well as their families, the general community, and the workplace. People who experience FDV are found to have a more disrupted work history, lower personal incomes, change jobs more frequently and are more likely to be employed in casual and part-time work.

This is a provisional decision only and therefore no action is currently required from employers.

Full Bench finding

The following reasons were found by the Full Bench to ‘strongly favour’ a paid FDV entitlement:

• FDV is a workplace issue that requires a workplace response
• paid FDV leave is a critical mechanism for employees to maintain their employment and financial security while dealing with the effects of FDV
• the financial circumstances of employees who experienced FDV may make it impossible for them to access the existing unpaid entitlement, with the consequence that they may not be able to relocate, attend court proceedings, obtain medical treatment and other forms of support, and this may prevent such employees from leaving violent relationships
• the current minimum safety net is, accordingly, not fair, or relevant
• paid FDV leave is not simply ‘a matter for government’
• that other social issues are not currently dealt with in modern awards is not a reason not to provide for paid FDV leave if the merits otherwise justify it, and
• it is not persuaded that the issue of FDV should be left to the enterprise level and left unregulated by modern awards.

The ACTU claim

The Australian Council of Trade Unions (ACTU) proposed that the paid leave entitlement should be available to casuals and that there should be an additional 5 days of unpaid FDV leave per occasion once the paid FDV leave has been exhausted.

The Full Bench rejected both proposals.

Ai Group’s claims

Ai Group submitted that:

• Family and domestic violence is a serious social issue which must not be tolerated or condoned. It is a community problem and the whole community has a role to play in addressing it.
• Employers typically take a flexible and compassionate approach to supporting employees experiencing family and domestic violence and they should be encouraged to continue doing so. However, employers have different capacities to provide paid leave to employees who are experiencing such violence.
• Governments have implemented various payments and other measures to assist employees experiencing family and domestic violence. These payments and measures are part of the broader social safety net and are appropriately considered by the FWC when deciding whether any changes should be made to modern awards.
• The NES in the FW Act have been amended recently to include important new measures that will assist employees experiencing family and domestic violence. This includes the introduction of an entitlement to up to 5 days of unpaid FDV leave. Parliament has decided that this is an appropriate entitlement to include in the safety net of minimum conditions. Ai Group and other employer representatives supported the FW Act being varied to include this entitlement.
• The inclusion of paid FDV leave entitlements in modern awards is not necessary.

Model FDV leave terms proposed by the Full Bench

The Full Bench suggested that a model FDV clause should have the following characteristics:

1. Full-time employees and, on a pro-rata basis, part-time employees should be entitled to 10 days paid FDV leave per year.
2. The entitlement should accrue progressively across the year in the same way as for personal/carer’s leave under the NES.
3. The entitlement should accumulate from year to year, but the total accrual available should not exceed 10 days at any given time.
4. The entitlement should be accessible in advance by agreement between an employer and employee.
5. It should be paid at the employee’s base rate of pay.
6. The definition of ‘family and domestic violence’ will have the same definition as in section 106B(2) of the FW Act and will not extend to FDV perpetrated by a member of the employee’s household who is not related to the employee.
7. In all other relevant aspects, the model FDV leave terms will reflect the terms of section 106(B).

Ai Group released a comment on the FWC’s Family and Domestic Violence Leave Decision.

What happens next?

As mentioned above, this is a provisional decision only and no action is currently required from employers. Interested parties have been invited to submit draft model FDV terms to the FWC. It is expected that the FWC will hand down their final decision on this issue in July.