Family and Domestic Violence Leave

As a part of the four yearly review into modern awards, a Full Bench of the Fair Work Commission (FWC) has decided to provide award-covered employees experiencing family and domestic violence with an entitlement to five days’ unpaid leave per annum.

The Australian Council of Trade Unions sought an uncapped amount of family and domestic violence leave per occasion, or alternatively an annual entitlement of 20 days’ unpaid leave per annum. Employer parties advocated for an unpaid entitlement limited to two to three days per annum. Ultimately, the FWC concluded that an entitlement of five days’ unpaid leave per annum represents a “fair and relevant minimum safety net entitlement” and enables affected employees to take time to deal with the impacts of family and domestic violence, without affecting their employment.

Family and domestic violence leave will be available in circumstances where an employee needs to do something to deal with the impact of the family violence and it is impractical for them to do so outside their ordinary hours of work.

Family and domestic violence will be defined as “violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.”

While the finer details of a model clause to be inserted into modern awards will be finalised in the coming weeks, the FWC has decided that the entitlement will:

1. 1. be available in full at the commencement of each 12 month period of employment rather than accruing progressively;
   2. not accumulate from year to year; and
   3. be available in full to part-time and casual employees (i.e. will not be pro-rated).

The FWC will revisit its decision in June 2021, after the model clause has been in operation for three years, to consider whether any changes are needed to model term, whether to allow employees experiencing family and domestic violence access to personal / carer’s leave entitlements and whether provisions should be made for paid family and domestic violence leave. This review will also consider how the entitlement has been used and its effect on business.

In the wake of this decision, the Federal government has signalled legislative amendments to ensure that employees not covered by modern awards will also be able to access the entitlement.

Gadens can assist businesses with a review of their policies and procedures to ensure they reflect the new modern award entitlement and best place employers to assist employees experiencing family and domestic violence.

Gadens can also advise employees experiencing family and domestic violence.

Authored by: 
Emma Moran, Associate
Siobhan McGee, Lawyer