Fair Work Decision on Family & Domestic Violence Leave

17 May 2022

The Fair Work Commission has handed down a major decision supporting 10 days of paid family and domestic violence leave for modern award workers. Tom Earls from Fair Work Lawyers unpacks the detail of the decision.

On Monday 16 May 2022, the Fair Work Commission handed down a major decision following a long- running test case seeking paid family and domestic violence leave to be an award condition.

In keeping with its recent practices in award matters, the Commission has issued a “provisional view” that the clause is necessary to achieve the modern awards objective, and also provided a provisional view as to what the model clause will look like, noting that there may be award-specific circumstances that change this view, or the design of the clause. In practice, there is unlikely to be much variance from the final model clause.

A summary of the Commission’s decision can be found here.

The proposed entitlement would:

• Be 10 days per year for full time employees, pro rated for part time employees (at least at the moment, the provisional view is that it will not be available to casual employees).
• Apply to the same circumstances as the NES unpaid entitlement (being that a person must be experiencing the violence and need to do something to deal with it that is impractical to do outside ordinary hours).
• Be a separate entitlement to existing sick/carer’s leave accrual but will accrue in the same way as sick leave does although it is capped at a maximum of 10 days accrual at any time.
• Be paid at the employee’s base rate of pay.
• Be accessible in advance, by agreement.
• While not expressly stated, it appears notice and evidence requirements akin to the NES would also apply to taking this leave.

As above, the specific terms of the model clause (and any award-based variations) will be known in due course.

Operational date

There is no advice yet when the award provisions will become operative. Further consideration is required for the Commission to form a concluded view (as compared to the provisional view). This process is likely to take some months.

Who does this affect?

The Decision affects all employees who a modern award applies to (excluding casuals, at least on the preliminary view).

The Decision does not affect award-free employees.

Employers who have enterprise agreements in place (including pre-Fair Work Act 2009 documents) are also not affected by the Decision, although it will become a relevant consideration in the better off overall test for new agreements.

NB: where an employee is covered by an enterprise agreement or is award free (or a casual, assuming the preliminary view stands), they would continue to be entitled to unpaid family and domestic violence leave under the NES.

The Decision does not fully deal with the interaction between the NES entitlement and the proposed new entitlement, although it is likely that it will ‘supplement’ the entitlement. This means that it is likely that it will not involve an employee getting both the unpaid and paid leave entitlement but further clarification is required.