In a major decision arising from its Family and Domestic Violence Leave Review 2021 ([2022] FWCFB 2001) a three member Full Bench of the Fair Work Commission (FWCFB) has formed a provisional view that modern awards should be varied to provide an entitlement to 10 days' paid family and domestic violence (FDV) leave in a 12-month period. That entitlement would be in addition to the unpaid 5 days' unpaid FDV leave that all workers are currently entitled to under the National Employment Standards (NES) in the Fair Work Act 2009 (FW Act).
The FWCFB has proposed that paid FDV leave would:
- be paid at the employee's 'base rate of pay' as defined in the FW Act;
- accrue in the same way as personal/carer's leave under the NES (however the total accrual must not exceed 10 days at any given time); and
- not apply to casuals.
The definition of 'family and domestic violence' has been adopted from the NES as violent, threatening or other abusive behaviour by a 'close relative' (as defined in the FW Act) of an employee.
In terms of the interaction between paid FDV leave in modern awards and the NES entitlement to unpaid FDV leave, the FWCFB noted the modern award provision does not exclude the capacity of employees to access the statutory entitlement to unpaid FDV leave. The proposed modern award variations will therefore not deprive employees (as argued by an employer association) of receiving their full NES benefit.
The FWCFB observed that paid FDV leave is becoming increasingly common in enterprise bargaining and in 'over award' arrangements in workplaces, and provides significant assistance to those experiencing FDV. Expert evidence led by the ACTU also supported a conclusion that paid FDV leave would not have a significant negative impact on the economy, and would be of some benefit to employers (such as in relation to improved productivity and reduced absenteeism).
It is noted that the Labor Party has previously indicated that, if elected, it would support an amendment to the FW Act to include an entitlement to 10 days' paid FDV leave.
The parties have until 17 June 2022 to provide a draft model FDV leave term in accordance with the provisional views expressed by the FWCFB.
For further information please contact:
Katrina Seck, Senior Associate
Phone: 02 9233 5544
Email: kas@swaab.com.au
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