On 16 May 2022, the Fair Work Commission (FWC) delivered a decision confirming its provisional view to include an entitlement to 10 days’ paid family and domestic violence (FDV) leave in modern awards.
The Full Bench noted that “more needs to be done to prevent FDV and, further, more needs to be done to address the consequences of such violence.” Amongst its findings was that the current minimum safety net (which is an entitlement to 5 days’ unpaid leave) is not “fair or relevant”, observing that the financial circumstances of an employee experiencing FDV may make it “impossible for them to access the existing unpaid entitlement.”
The FWC also set out its provisional view on what a model FDV leave term should have, including that the entitlement:
- will only apply to permanent employees (not casual employees) and will apply pro-rata for part-time employees;
- will accrue progressively during a year of service (in the same way that personal/carer’s leave accrues currently);
- should, by agreement, be accessible in advance of the entitlement accruing;
- should be payable at the employee’s “base rate of pay” (as that term is defined in the Fair Work Act 2009 (Cth) (FW Act)); and
- will rely on the definition of “family and domestic violence” in the FW Act.
Parties are being afforded an opportunity to provide submissions in response to the above provisional view, however, they have also been tasked with formulating a draft model FDV leave term (so we do not anticipate that the model term will vary greatly from what has been contemplated above).
Interestingly, the Full Bench also proposed – as part of the next steps in the FDV leave review – that the parties confer and submit draft directions in respect of the finalisation of the proceedings, which specifically provide the Commonwealth Government an opportunity to clarify its intentions regarding any amendments to the National Employment Standards (should it choose to do so).
If this has raised any concerns for you or any members of your team, we encourage you to contact White Ribbon for further support.
If you are an employer with any questions about FDV leave or other employee entitlements, feel free to reach out to a member of our team on (03) 9448 9600.
The above is general information and should not be taken as legal advice.
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