BREAKING NEWS: FWC Approves Unpaid Domestic Violence Leave
The Fair Work Commission yesterday (Monday 26 March 2018) provisionally ruled that a model domestic violence leave clause should be inserted into 119 of the 122 modern awards in Australia.
Only three awards, two road transport awards and the Australian Government Industry Award, will be exempt as they are the subject of later legal proceedings.
Employer groups argued that unpaid family and domestic violence leave should not be introduced into the modern award system.
They argued that
- such leave is “appropriately” dealt with in enterprise agreements
- it is not for the Commission to prioritise particular social concerns over others
- the creation of separate forms of leave is a matter for the National Employment Standards
- various forms of leave, such as personal or annual leave, can be accessed by employees suffering domestic violence; the modern awards system already allows access to different forms of flexible working
- the Fair Work Act provides various protections to employees absent from work owing to domestic violence; and
- complexities associated with family and domestic violence make drafting a clause “inherently difficult”.
These arguments were rejected by the Fair Work Commission.
In deciding to provisionally approve an unpaid domestic violence leave clause, the Full Bench of the Fair Work Commission found as a fact that
- family and domestic violence has a significant adverse impact on those who experience it
- while men can, and do, experience family and domestic violence, such violence is a gendered phenomenon that disproportionately affects women
- the effects of family and domestic violence are far reaching and extend beyond the individual directly affected to their families and the general community
- family and domestic violence has a real and tangible impact on employees and employers in the workplace
- employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or becoming a sole parent; and may suffer economic harm as a result of disruption to workplace participation
- domestic violence is a community issue and requires a community response.
Noting that family and domestic violence is “ubiquitous,” as one in four women in Australia (nearly 2.2 million women) are subject to it, the Commission added that about 62% of women who experienced domestic violence in the last 12 months were in paid work at the time.
It added that employment is an “important pathway” out of violent relationships and that provision of domestic violence leave is likely to help employees remain in employment.
“The model term will enable employees affected by family and domestic violence to take unpaid leave if they need to do something to deal with the impact of the violence – such as making arrangements for their safety or the safety of their children – without affecting their employment. This consideration is a factor in favour of varying modern awards to include the model term,” the Full Bench said.
It said that some businesses will experience an adverse impact, that employment costs will increase and there will be an increase in the regulatory burden. However, the Commission doubted that “the taking of this unpaid leave entitlement would have any significant impact on productivity,” or that there would be any adverse effect on the national economy.
The model clause will be finalised in the “coming weeks”. A further hearing will be held in Sydney at 11:00am on Tuesday 01 May 2018.
Model clause notes and comments
The Fair Work Commission has provided the following text for the proposed clause along with notes and comments.
Family and Domestic Violence Leave Model Term
1 Definitions (Agreed)
1.1 In this [model term]:
family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.
Family member means:
(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of
the employee; or
(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner
of the employee; or
(c) a person related to the employee according to Aboriginal or Torres Strait
Islander kinship rules.
1.2 A reference to a spouse or de facto partner in the definition of family member
in clause 1.1 includes a former spouse or de facto partner.
2 Entitlement to unpaid family and domestic violence leave (Partial Agreement)
A number of matters concerning the extent of the entitlement remain in dispute:
● Is an employee entitled to unpaid leave for each occasion that satisfies
clause 3 and, if so, is there a limit on the number of days of unpaid leave that
can be taken on each occasion?
● Is the entitlement to be limited to a specified quantum of unpaid leave per
annum and, if so, what is that quantum?
● In relation to any specified quantum of unpaid leave entitlement:
Does the entitlement accrue progressively during a year of service or is it
simply an entitlement in each 12 month period?
In the event that the entitlement to unpaid family and domestic violence leave is limited to a specified quantum of unpaid leave, then the following note is agreed:
Note: A period of family and domestic violence leave may be less than a day by agreement between the employee and the employer.
3 Taking Unpaid Leave (Agreed)
An employee experiencing family or domestic violence may take unpaid family and domestic violence leave if the employee needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.
Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
4 Notice and evidence requirements (Agreed)
4.1 An employee must give their employer notice of the taking of leave by the
employee under this [model term].
4.2 The notice:
(a) must be given to the employer as soon as practicable (which may be a
time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the
4.3 An employee who has given their employer notice of the taking of leave under
this [model term] must, if required by the employer, give the employer
evidence that would satisfy a reasonable person that the leave is taken for a
purpose specified in clause 3.
Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.
5 Confidentiality (Agreed)
5.1 Employers must take steps to ensure information concerning any notice given or evidence provided under clause 4 is treated confidentially, as far as it is reasonably practicable to do so.
5.2 Nothing in this clause prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another
Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee.
Employers should consult with such employees regarding the handling of this information.
6 Compliance (Agreed)
An employee is not entitled to take leave under this [model term] unless the employee complies with this [model term].