The Full Bench of the Fair Work Commission (FWC) recently came to a provisional view that there should be a modern award entitlement to 10 days of paid family and domestic violence (FDV) leave. The Full Bench’s provisional view may be accessed here.
In reaching this view, the FWC acknowledged that FDV was a “workplace issue which requires a workplace response”. The Full Bench also expressed that FDV leave was critical to employees maintaining employment and financial security whilst dealing with the effects of FDV.
Current Entitlements
In 2018, the Full Bench varied 123 modern awards to include five days of unpaid FDV leave.
The then Federal Government subsequently extended the unpaid FDV entitlement through introducing it into the National Employment Standards (NES), which apply to all federal system employees whether they are award covered or not.
The Full Bench considered that the current unpaid FDV entitlement is not accessible to many employees for practical financial reasons.
The Provisional View
The Full Bench expressed that a model paid FDV leave term should have the following characteristics:
Full time employees should be entitled to 10 days paid FDV leave per year (with part-time employees having a pro rata entitlement).
The entitlement should accumulate from year to year but should be subject to a cap whereby the total accrual does not exceed 10 days at any given time.
The FDV leave entitlement should be accessible in advance of an entitlement to such leave accruing, by agreement between an employer and employee.
The FDV leave entitlement should operate on the basis that it is paid at the employee’s base rate of pay.
The definition of “family and domestic violence” should be in the same terms as the definition in s.106B(2) of the Fair Work Act 2009.
In all other relevant respects, the model FDV leave term should reflect the terms of s.106B of the Fair Work Act 2009, being that the employee may take FDV leave if they are experiencing family violence and they need to do something to deal with the impact of family violence that is impractical for the employee to do outside their ordinary hours of work.
Next Steps
There are still several steps before this provisional view makes its way into modern awards.
The Full Bench directed the parties to draft a model FDV leave term based on its provisional view and to submit draft directions.
The Full Bench has called for the Federal Government to clarify its “intentions regarding any amendment to the NES, should it choose to do so.”
In flagging this opportunity, the Full Bench noted it was eager to avoid the same situation that occurred when the unpaid entitlement was introduced to modern awards – when the previous Federal Government announced the same unpaid entitlement soon after the Full Bench expressed its provisional view, causing considerable confusion.
Relevantly, Labor moved to legislate the entitlement in September 2021. However, the Coalition voted against the move, causing it to fail. Further, Labor claims it has been calling for 10 days paid FDV leave to be included in the NES since 2017. Consequently, it is highly possible that all federal system employees (as distinct from those covered by Awards) will soon have a paid FDV entitlement.
For more information, please contact:
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Eliza Millen
Lawyer
T +61 3 9611 0177
E: emillen@sladen.com.au
