Paid Family and Domestic Violence Leave provisionally endorsed by Fair Work Commission

Unpaid family and domestic violence leave has been a feature of the National Employment Standards since 2018. Arising from the Fair Work Commission’s 4-yearly review of modern awards, the Australian Council of Trade Unions (ACTU) made an application to the Fair Work Commission for all modern awards to be varied to include an entitlement for paid Family and Domestic Violence Leave (FDV Leave).

Earlier this week, the Commission handed down its provisional view that all modern awards be varied to include a paid FDV Leave entitlement of 10 days.

The case for paid FDV leave

The Commission sought to analyse the prevalence, and impacts, of family and domestic violence on employees in Australia. The Commission adopted findings within the 2018 Family and Domestic Violence Leave Decision [2018] FWCFB 1691, which held that:

Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or become a sole parent; and may suffer economic harm as a result of disruption to workplace participation.

 …

Employment is an important pathway out of violent relationships.

The Commission further assessed reports into the impacts of FDV Leave, such as Monash University’s “Safe, Thriving and Secure: Family Violence Leave and Workplace Supports in Australia” and Flinders University’s “Family and Domestic Violence Leave Entitlement in Australia: A Systemic Review”, ultimately finding:

The evidence supports a finding that paid FDV leave provides significant assistance to those experiencing FDV. Such leave helps individuals to maintain their economic security; to access relevant services, and to safely exit to a life free from violence.

In short, the Commission held that “FDV is a workplace issue that requires a workplace response” and that “the financial circumstances of employees who have experienced FDV may make it impracticable for them to access the existing unpaid entitlement.”

How will paid FDV Leave work?

The mechanics of the entitlement are yet to be determined. At this stage, the Commission has requested that the parties to the application (being the ACTU and several employer associations) provide submissions on the drafting of a model term.

However, in expressing its provisional view, the Commission has suggested that:

1. Full time employees and, on a pro-rata basis, part-time employees will be entitled to 10 days paid FDV Leave per year;
2. FDV Leave will accrue year-to-year, however, employees will only be able to accrue a maximum of 10 days FDV Leave;
3. Employees will be able to access FDV Leave in advance of it being accrued; and
4. FDV Leave will be paid at an employee’s base rate of pay.

 The entitlement will likely not be available to casual employees.

Further, in expressing its provisional view, the Commission was not minded to expand the definition of family and domestic violence to include violence or abuse perpetrated by someone living in the same household but who is not a close relative or immediate family.

What this means for employers

This new leave entitlement means award covered employers will, once a determinative decision is made, need to begin accruing a FDV Leave balance to employees. Generally, this decision should serve as a reminder to employers to ensure their leave policies and procedures are up to date and compliant with requirements under the Fair Work Act and any applicable modern award.

NRA Legal is a full-service employment law firm serving the needs of employers and are available to review, draft, or amend policies and procedures, and provide award compliance advice. Do not hesitate to contact us on 1800 572 679.