Compulsory Family and Domestic Violence Leave is on the way for Modern Awards

27 Mar 2018
All employers, public and private, must start planning now for the introduction of compulsory unpaid Family and Domestic Violence (FDV) Leave, following the Fair Work Commission's decision late yesterday afternoon to provisionally rule to include a model domestic violence leave clause into Modern Awards.

Why does Australia need Family and Domestic Violence Leave?

As part of the four-yearly modern award review process, the ACTU made a submission to the Fair Work Commission in 2017 asking that 10 days paid FDV Leave be incorporated into all Awards. It argued that FDV was a workplace issue as well as a social issue, which disproportionately affected women and had significant negative financial impacts on those who experienced FDV and society more broadly.

Research supports the ACTU argument that the impact of FDV on the workplace is significant. A 2011 Australian study found that 59% of women who had experienced domestic violence reported a negative effect on their work, while of the 45% who did disclose their experience of violence to someone at work, only 10% found the response to be helpful.  Implementing a FDV policy is important to encourage employees to feel comfortable to disclose their experience of violence, and receive support from their employer; as employment is critical to ensure a person is not economically trapped in a violent relationship, this is a key pathway to leaving a violent relationship.

Although the Full Bench rejected the ACTU’s claim for paid FDV Leave, it went on to consider if 10 days of unpaid FDV Leave should be incorporated into Awards as an entitlement. It has come to the provisional view that five days' unpaid leave would be appropriate for all Modern Awards, except for three that are being considered separately:

  • the Australian Government Industry Award 2016;
  • the Road Transport and Distribution Award 2010; and
  • the Road Transport (Long Distance Operations) Award 2010.

Who would be able to use Family and Domestic Violence Leave?

The new entitlement would be available for an "employee experiencing family and domestic violence, if the employee needs to do something to deal with the impact of that violence and it is impractical for them to do it outside their ordinary hours of work".

It would:

  • apply to all employees (including part-time and casual employees) covered by Modern Awards (barring the three listed above);
  • be available in full at the commencement of each 12 month period (and not accrue progressively);
  • not accumulate from year to year; and
  • be available in full to part-time and casual employees (ie. not pro-rated).

Employees would not have to use any available paid leave entitlements before using FDV Leave.

The next steps for incorporating Family and Domestic Violence Leave into Modern Awards

Draft model clauses have been released, and the Commission will seek views on them before making a final ruling on whether they should be incorporated in that form.

The Commission will then review FDV Leave in June 2021 and consider whether:

  • changes are needed to the unpaid leave model term;
  • there should be access to personal/carer’s leave; and
  • provisions should be made for paid family and domestic violence leave.

With the introduction of a term guaranteeing unpaid FDV Leave likely to be included in all Awards, employers of employees covered by Modern Awards must:

  • start thinking about and assessing how they manage FDV in their workplaces;
  • create a FDV Leave policy to set up how the employer intends to manage the issue so that they are not caught out when the clause is actually implemented; and
  • consider making a submission on the draft model clauses.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.