Full Bench rules on paid domestic violence leave

19 May 2022

The Full Bench of the Fair Work Commission has provisionally approved the entitlement of paid family and domestic violence (FDV) leave for employees covered by Modern Awards.

In the decision, which is part of the four-yearly review of Modern Awards, the Full Bench considered whether a variation of Awards was needed to accommodate paid FDV leave, in addition to the current entitlement of five (5) days unpaid FDV leave provided for in the National Employment Standards (NES).

Led by an application by the Australian Council of Trade Unions (ACTU), the Commission ruled that paid FDV leave would provide a significant assistance to those experiencing domestic violence in that it helps victims maintain their ‘economic security’.

In the judgment, the Commission published their provisional views on what a model term for paid FDV leave would include, including:

  1. Full-time employees (and part-time on a pro rata basis) should be entitled to 10 days paid FDV leave per year;
  2. The leave should accrue in the same nature as personal/carer’s leave and accumulate year to year, subject to leave being ‘capped’ at 10 days;
  3. The entitlement will operate on the same definition of ‘family and domestic violence’ as in the NES.

The NES entitlement for 5 days unpaid FDV leave will still apply; the Commission emphasised that changing the NES is a matter for Parliament, and not for the Commission.

The Commission has given interested parties until 17 June 2022 to submit their draft version of the model term, based on the Commission’s provisional views. The Commission will also provide the Commonwealth Government the opportunity to clarify its intentions regarding any amendment to the NES, should it choose to do so.While any changes to the Awards will still be some months away, employers with enterprise agreements will need to consider this incoming change, especially if they are in the process of or about to commence bargaining for a new agreement.

EMA Legal can assist employers with all queries related to leave entitlements.

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