Family and Domestic Violence Leave

In a decision published on 16 May 2022, a FWC full bench has outlined its provisional view that there should be a modern award entitlement to 10 days paid family and domestic violence leave (FDV Leave) for all award-covered full and part time employees across the country. The FWC seeks the Federal Governments view about whether it would incorporate such a provision into the National Employment Standards (the NES).

President Iain Ross, Vice President Adam Hatcher and Commissioner Paula Spencer were unwilling to express a view about whether such a provision should be included in the NES, noting that it is a “matter for Parliament, not the Commission”. Nevertheless, the bench seeks to better understand the legislative intentions of the Federal Government prior to making any variations to Modern Awards.

The FWC has directed parties to draft a model FDV Leave term based on its provisional view and submit draft directions by 17 June 2022.

A significant reason behind the FWC’s provisional view was evidence that paid FDV Leave had become an “emerging standard” in enterprise agreements and over-award agreements. 

President Iain Ross, Vice President Adam Hatcher and Commissioner Paula Spencer said the evidence showed a sharp rise in the availability of paid FDV leave in the past five years. 

Employer groups have reacted strongly to the FWC Bench’s decision with ACCI arguing that the FWC should not “assess enterprise bargaining outcomes and then transplant trends in bargaining into the minimum safety net”.

The AI Group said the Commission ought to consider what is necessary to achieve the modern awards objective, “not simply to codify commonly provided benefits within the award system”.

“The prevalence or otherwise of a particular above-award condition could not be seen as a compelling justification for a variation to the safety net.” 

Both employer groups “generally accept the seriousness of FDV as a societal problem” but argue it is unfair or unreasonable for employers to have bear all the cost. 

It is unclear at this stage what the Federal Government’s view is on NES amendments to include paid family violence leave.