FWC provisional view – 10-day paid family and domestic violence leave entitlement

The Full Bench of the Fair Work Commission (FWC) formed the provisional view on 16 May 2022 that modern awards should contain an entitlement to 10 days of paid family and domestic violence leave (FDV).

Background

This provisional view has arisen as a result of the 4 yearly review of modern awards currently before the FWC. In March 2018, the FWC varied modern awards to provide an entitlement to 5 days unpaid FDV leave and indicated that it would review whether there should be a paid FDV leave entitlement.

FWC decision

On Monday 16 May, after hearing and considering detailed evidence and submissions from interested parties, the FWC shared the provisional view that a 10-day paid FDV leave entitlement should be inserted into modern awards on the basis that it is necessary to achieve the modern award objective to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’.¹

In coming to this view, the FWC acknowledged the evidence of the prevalence and increased rates of FDV and stated that ‘more needs to be done to prevent FDV a to address the consequences of such violence‘ and, whilst paid FDV leave is not a ‘panacea’, ‘it will provide a critical mechanism for employees to maintain their employment and financial security, while dealing with the effects of FDV’.²

The FWC’s provisional view is that the FDV leave award clause should reflect the following:

1. Full-time employees should be entitled to 10 days’ paid FDV leave per year (pro-rata for part-time employees);
2. This entitlement should accrue progressively across the year in the same way as personal/carers’ leave accrues under the National Employment Standards (NES);
3. It should be accessible in advance of an entitlement to such leave accruing by agreement between the employee and employer; and
4. The leave should be paid at the employee’s base rate of pay.³

The FWC expressed ‘no view’ as to whether the NES should be varied to incorporate paid FDV leave, noting that this is a matter for Parliament to consider whilst indicating that ‘clarity as to the Commonwealth Government’s intentions would plainly be of assistance’.⁴ The federal ALP has previously indicated its support for 10 days paid FDV leave for all employees, whilst the Coalition has now said that they will consult with relevant stakeholders on its proposed implementation.

The FWC has directed the parties to provide a draft model FDV leave clause based on its provisional view mentioned above by 17 June 2022, after which it will make a final determination.

Implications for employers

Many organisations already have HR policies or enterprise agreements which provide for paid FDV leave. To the extent that your organisation currently only applies the 5-day unpaid FDV leave NES entitlement (or less than 10 days paid), you should keep a close eye on developments in this area over the coming months. If you are involved in enterprise bargaining, the 10-day paid entitlement is now likely to become an expectation and should also be kept in mind for the better off overall test once awards are varied.

If you would like to discuss FDV leave and the possible implications for your organisation, please contact a member of our Workplace Relations team.

References
1. Family and domestic violence leave review 2021 [2022] FWCFB 2001 (16 May 2022) at at [978].
2. See above n 1 at [997] –[999].
3. See above n 1 at [874].
4. See above n 1 at [1011]-[1012].