Domestic violence concept with gavel and book, 3D rendering

On 16 May 2022, a Full Bench of the Fair Work Commission (FWC) concluded its four-yearly review of the family and domestic violence leave entitlements in Modern Awards. In this decision, the FWC has formed a provisional view that Modern Awards should provide an entitlement to 10 days paid Family and Domestic Violence (FDV) leave per each completed year of service. This is an increase from the current entitlement of five days unpaid FDV leave. The FWC also sought the Federal Government’s view on whether the Federal Government would incorporate such a provision in the National Employment Standards (NES).

 

Why was this review brought about?

The FWC conducted the review on an urgent basis, in response to the Australian Council of Trade Unions’ concern for the increased incidence of FDV during the midst of the COVID-19 pandemic, demonstrating the issue remains a pressing problem confronting employees, employers and the wider community.

In coming to its provisional view, the Full Bench accepted that (amongst other things):

  • FDV is a workplace issue, which requires a workplace response;
  • Paid FDV leave is a critical mechanism for employees to maintain their employment and financial security during FDV situations;
  • the financial circumstances of employees who have experienced FDV may make it impossible for them to access the existing unpaid entitlement. This leads to further negative consequences such as an individual’s inability to relocate, attend court proceedings, obtain medical treatment or other forms of support. This may subsequently inhibit such employees from leaving violent relationships;
  • the FWC was not persuaded that the issue of FDV should be left to the enterprise level and left unregulated by Modern Awards; and
  • The Modern Awards’ objective is to ensure that Modern Awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions.

 

How would the FDV apply?

The entitlement to paid FDV leave would apply as follows:

  1. Full-time employees would receive the full 10 paid days of FDV per each completed year of service. This entitlement would be calculated on a pro-rata basis for part-time employees. Casuals are not entitled to paid FDV leave.
  2. The 10 paid days of FDV leave per year would accrue progressively throughout the year capped as to days per year and may be made available ahead of it accruing by mutual agreement.
  3. The definition of “family and domestic violence” is as defined in s.106B(2) of the Fair Work Act 2009 (and not extend to FDV perpetrated by a member of the employee’s household who is not related to the employee).

 

Why is this decision of vital social importance and significance?

Employment is an important pathway out of violent relationships. The introduction of entitlements to paid FDV leave provides significant assistance to victim employees who experience FDV. Access to paid FDV helps victims to maintain their economic security, access relevant services, and to subsequently safely exit the situation of concern.

The Full Bench considered and accepted that FDV disproportionately affects women, and that women who experience FDV have a more disrupted work history, lower personal incomes, more frequent changes of jobs, and are more likely to be employed in casual and part-time work than women with no experience of violence. The Commission contended that FDV is both a cause and consequence of gender inequality.

 

Impact of this decision on employers:

Employers would not be required to pay for additional 10 days of leave where such obligation does not currently exist. FDV leave is a separate and independent type of leave, in addition to other paid leave entitlements and that is likely to cause a considerable impact on the wages bill. Further, employers would need to introduce appropriate policies to deal with FDV, the process for application, the evidence that can be requested from the employee and any support that the employer is able and expected to provide to employees in these situations.

 

Contact our Employment and Workplace Relations team who can provide advice on Domestic and Family Violence leave entitlements, and draft the appropriate policies and contract of employment to deal with this issue.

 

Disclaimer

The information in this publication is of a general nature and is not intended to address the circumstances of any specific entity or individual. Although MBA Lawyers endeavours to provide accurate and timely information, no guarantee is provided that the information is accurate at the time it was published or that it will continue to be accurate in the future.