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.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Land­lords Beware: New Tobac­co Laws Could Mean Heavy Fines and Even Gaol Time

How Do New Tobac­co Laws Affect Land­lords in NSW?This year the NSW State Gov­ern­ment is crack­ing down on the sale of…

When is entry into a lot with­out the lot own­er’s con­sent per­mit­ted to car­ry out repair work to com­mon prop­er­ty? When there is an emergency

When is entry into a lot with­out the lot own­er’s con­sent per­mit­ted to car­ry out repair work to com­mon prop­er­ty? When…

A Short Sto­ry about Bullying

In the recent Fair Work Com­mis­sion deci­sion of Appli­ca­tion by Gary Whitham [2026] FWC 3322, Deputy Pres­i­dent Col­man gave short…

In the News

Michael Byrnes appeared on McK­night Tonight with Robert McK­night on 6 Octo­ber 2026 to dis­cuss the lat­est devel­op­ments in the Jack­ie ​‘O’ Hen­der­son v ARN case (from 5:40 to 20:00)

What hap­pened to the Jack­ie O and ARN court case, and why did the Fed­er­al Court hear­ing col­lapse in OctoberMichael Byrnes appeared…

Michael Byrnes is quot­ed in the arti­cle, “ ​‘You can’t force new con­tracts on employ­ees’ ”, pub­lished in TV Black­box on 4 Octo­ber 2026

Can an employ­er force employ­ees to sign a new employ­ment con­tract if they don’t agree to the changes?Michael Byrnes is quot­ed in…

Michael Byrnes is quot­ed in the arti­cle, ​“Jack­ie Hen­der­son and ARN’s court show­down post­poned”, pub­lished in Mum­brel­la on 2 Octo­ber 2026

Why was Jack­ie Henderson’s Fed­er­al Court tri­al against ARN Media post­poned, and what issues delayed the Octo­ber 2026 hearing?Michael Byrnes is…

Sign up for our Newsletter

*Mandatory information