Paid Fam­i­ly and Domes­tic Vio­lence Leave To Be a Mod­ern Award Entitlement

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.