Fair Work Commission Family and Domestic Violence Leave Review

Simon Thorne
June 22, 2022

On 16 May 2022, the Australian Fair Work Commission (FWC) handed down its Family and Domestic Violence Leave Review 2021 as part of its 4 yearly review of modern awards.

The FWC handed down in 2018 its 2018 Family and Domestic Violence Leave Review directions which decided to vary modern awards to provide employees experiencing family and domestic violence (FDV) with 5 days unpaid leave in a 12month period.

In conducting its 2021 Review of Family and Domestic Violence Leave, the commission sought and received submissions from the ACTU, industry groups, employers, expert witnesses and interested parties. A series of hearings was conducted by the commission to hear submissions and responses to submissions from all parties. The commission also noted several research papers conducted by Monash and Flinders Universities related to FDV and conducted a survey of employers regarding the review.

Following the conclusion of hearings, the Full Bench found that ‘FDV is ubiquitous, disproportionately affects women, has increased during the COVID-19 pandemic and has a significant adverse effect on those who experience it as well as their families and the general community’.

The Full Bench also found that ‘FDV has a real and tangible impact in the workplace and that women who experience FDV have a more disrupted work history, lower personal incomes, more frequent changes of jobs and are more likely to be employed in casual and part-time work than women with no experience of violence.’ The Full Bench also found that ‘FDV is both a cause and consequence of gender inequality and affirms the finding made in the March 2018 FDV leave Decision that employees who experience FDV often face financial difficulties as a result, such as relocation costs, or become a sole parent and may suffer economic harm as a result of disruption to workplace participation.’

The Full Bench also commissioned the Social Work Innovation Research Living Space at Flinders University to undertake an analysis of the Attorney General’s Department’s Workplace Agreements database (WAD Analysis) to determine the prevalence of FDV clauses or provisions in Australian enterprise bargaining agreements. The WAD Analysis indicated that over 64 percent of enterprise agreements approved between 7 July 2018 and 30 June 2021 contained some type of clause related to FDV leave and that 32 percent of agreements approved in this period contained paid FDV leave provisions.

The Full Bench also gave regard to the Workplace Gender Equality Agency (WGEA) 2020-21 employer census. The WGEA report surveyed 4,474 organisations in Australia with over 100 employees and found that of those organisations surveyed, that 70.3 percent of organisations have a formal policy and/or strategy to support employees who are experiencing FDV and 50.7 percent of organisations provide access to paid FDV leave.

Based on the WAD Analysis and the WGEA employer census, the Full Bench found ‘that an entitlement to paid FDV leave provides significant assistance to those experiencing FDV in that it helps individuals to maintain their economic security, to access relevant services and to safely exit to a life free from violence.  The Full Bench further found ‘ that the introduction of paid FDV leave is likely to be of some, albeit difficult to quantify, benefit to employers by reducing the absenteeism and lost productivity caused by FDV.’

The Full Bench concluded ‘that the evidence supports a finding that varying modern awards in accordance with the provisional model term for paid FDV leave would have no significant adverse impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. At the enterprise level, although the cost impact on employers will vary, it is unlikely to be substantial due to likely low employee utilisation rate of access to the entitlement and the existence of at least some offsetting benefits to employers.’

The Full Bench then issued a provisional view that a model FDV leave term should include the following provisions:

  1. That full time employees and, on a pro-rata basis, part-time employees, should be entitled to 10 days paid FDV leave per year.
  2. The entitlement to 10 days paid FDV leave per year should accrue progressively across the year in the same way as for personal/carer’s leave under the NES, with accrual occurring according to the methodology articulated by the High Court in Mondelez Australia Pty Ltd v AMWU and Ors. The entitlement should accumulate from year to year, but subject to a ‘cap’ whereby the total accrual available does not exceed 10 days at any given year.
  3. The FDV leave entitlement should be accessible in advance of an entitlement to such leave accruing, by agreement between an employer and employee.
  4. The FDV leave entitlement should operate on the basis that it is paid at the employee’s ‘base rate of pay’ as defined in s.16 of the FW Act.
  5. The definition of ‘family and domestic violence’ will be in the same terms as the definition in s.106B(2) of the FW Act (and not extend to FDV perpetrated by a member of the employee’s household who is not related to the employee).
  6. In all other relevant respects, the model FDV leave term will reflect the terms of s.106B of FW Act.

The Full Bench thus concluded that the consideration in s.134(1)(a) ‘strongly favours’ the variation of modern awards to include the provisional model term.

The provisional model will now undergo a further consultation with the intent of the Full Bench to file directions on the provisional model to be included in modern awards no later than Friday July 1 2022. The direction will then provide an opportunity for the commonwealth to determine whether to enshrine the new directions into the National Employment Standards.

The Federal Minister for Employment and Workplace Relations, Tony Burke has announced his intention to enshrine the FDV Leave provisions handed down by the Full Bench into the National Employment Standards within the Fair Work Act prior to the end of 2022. This means that all employers will be required to offer the 10 days FDV leave standard from that date.

Where to from here?

Worklogic recommends that all organisations:

  1. Review with a matter of urgency their current employment policies related to FDV leave to ensure that they comply with the new standard;
  2. If organisations do not have a current policy related to FDV leave they will need to develop these policies with a matter of urgency;
  3. Those employers who currently operate under Modern Awards will need to prepare to implement the new standard as at 1 July 2022;
  4. Employers who operate under enterprise agreements should review their enterprise agreements to determine whether they need to amend their policies and procedures and consult with their unions about the implementation of the new standard;
  5. Those organisations operating under enterprise agreements will need to prepare for claims from their unions regarding the implementation of the new standard in their current and future enterprise agreements;
  6. All organisations will need to ensure that their payroll and HR systems are updated to reflect the new minimum standard.

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