Fair Work Commission Reaches Verdict on Domestic Violence Leave Entitlements

16 April 2018

8.3 million workers covered by modern awards and by the Fair Work Act 2009 (Cth) (the Act) will be able to access 5 days of unpaid family and domestic violence leave annually.

The Australian Council of Trade Unions (ACTU) vied for employees to have uncapped access to unpaid domestic violence leave in addition to 10 days paid domestic violence leave, however this was rejected by Fair Work Commission (FWC) President Justice Iain Ross, Deputy President Ann Gooly and Commissioner Paula Spencer, who found that 5 unpaid days per year “represents a fair and relevant minimum safety net entitlement”.

The entitlement will apply to approximately 2.3 million workers covered under modern awards, including part-time and casual workers. It does not accrue progressively, being available in full at the commencement of each 12-month period. The entitlement will not accumulate from year to year.

The Turnbull Government has promised to introduce amending legislation “as soon as possible” to extend the entitlement to the 6 million other workers whose entitlements are instead covered by the Act.

ACTU Secretary Sally McManus said the move was a “very small step in the right direction” but not adequate to help cover victims’ costs, stating that 10 days paid leave represents a more suitable entitlement.

Ms McManus said victims “need time and financial independence to make themselves and sometimes children safe, and this plan does not provide it. No worker should have to choose between keeping their job and keeping their family safe.”

The Act already provides other protections to employees experiencing domestic violence, including the right to request flexible work arrangements, other types of paid leave and protection from unfair dismissal and/or adverse action.

Australian Industry Group chief executive Innes Willox stated that employers are unlikely to experience problems with the changes, with employees being able to take the leave only to address issues directly related to the impact of domestic violence and even then, only if it is impractical for this to occur outside of working hours.

Drafting of a model term that would give effect to the decision is yet to be finalised, however recommendations for employers include:

  • Identify which employees will be eligible for the entitlement
  • Review and revise existing policies and procedures to reflect the new entitlement, incorporating provisions that:
  • ​​reinforce your business’s commitment to health and safety of its employees
  • outline how the leave is to be managed, such as how the entitlement will interact with an employee’s existing leave and the process for notifying an employer that an employee wishes to take this form of leave
  • provide details of what will be considered “experiencing family and domestic violence” and any evidence that employees requesting the leave may be required to produce (for example medical certificates or documents issued by a police service, court or family violence support service)
  • emphasise sensitive information will be kept confidential