As part of the Fair Work Commission’s four year review of modern awards, the Full Bench has determined that Australian employees covered by a modern award and experiencing family and domestic violence should be entitled to five days of unpaid leave.
The Commission was satisfied that their decision was a “cautious and regulatory response to this issue”. An employee experiencing family and domestic violence may struggle to either obtain employment or continue in their position, they may feel distracted, stressed and unwell during work, or need time off work. The impact of family and domestic violence is not confined to the individual, but also impacts surrounding family members including children, and colleagues in the workplace.
The draft model term, which is to be included in all modern awards and is yet to be finalised, will apply to employees, including casuals, covered by a modern award. The leave will not be pro-rated, which means a part-time employee will be entitled to the same number of days as a full-time employee. The leave will be available to an employee who is experiencing family and domestic violence, or, in the event they need to do something to deal with the impact of family and domestic violence (and it is impractical for them to do it outside their ordinary hours of work). For example, making arrangements for their safety or the safety of a family member, attending to urgent court hearings and accessing police services. Family and domestic violence is defined as “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”.
The employee must give their employer notice as soon as practicable and provide evidence at the employer’s request. Employers must also take steps to ensure the information concerning the notice is treated confidentially, as far as is reasonably practical. The drafting of the final term is yet to be finalised. The Commission’s draft can be found here:  FWCFB 2440.
The Commission has indicated that it does not know to what extent the new entitlement to unpaid leave will be utilised by employees, and thus the impact on business. It intends to revisit this issue in June 2021, after the model term has been in operation for three years. At that time it will consider whether any changes are needed to the model term, whether to allow access to personal/carer’s leave and whether to revisit the question of paid family and domestic violence leave.
The introduction of the new clause is a prompt for organisations to revisit their policies in this area. Effective and appropriate supports offered through policies and training to all staff (including managers and colleagues) will ensure victims of family and domestic violence have a better chance of dealing with their circumstances than they might otherwise. The Australian Human Rights Commission has a useful factsheet which outlines a range of actions a workplace can take.
For further information about this topic and our Family and Domestic Violence Leave Policy, please contact Nicola Martin.