On 16 May 2022, the Fair Work Commission reached a provisional view that a term providing for 10 days of paid family and domestic violence leave (FDV Leave) should be included in modern awards.

This view was reached in the FDV Leave review decision which was part of the four yearly modern award review, and was delivered by a Full Bench of the Fair Work Commission (the Commission) comprised of President Justice Ross, Vice President Hatcher and Commissioner Spencer ([2022] FWCFB 2001).

The decision

This decision comes at the request of the ACTU for a review of the current entitlement in modern awards. This followed the Commission’s previous decision in 2017 to include an unpaid (rather than paid) FDV Leave entitlement in modern awards. This entitlement was later included in the National Employment Standards in the Fair Work Act 2009 (Cth).

The request follows concerns about the increase in FDV during the pandemic. In reaching its decision, the Commission noted that FDV remains a “gendered phenomenon” towards women, with 1 in 4 women (or 2.2 million women) from the age of 15, as opposed to 1 in 13 men, experiencing at least one incident of violence by an intimate partner. It is estimated that the aggregate cost to employers of the impact of FDV is up to $2 billion per year.

The Commission also noted that “employment is an important pathway out of violent relationships and paid FDV leave provides significant assistance to employees who experience FDV; it helps individuals to maintain their economic security; to access relevant services, and to safely exit to a life free from FDV”. The Commission also noted that the battleground “is not about whether there is a need to provide paid FDV leave; it is about who pays for it”.

Finally, the Commission observed that the contested issue is not about whether paid FDV Leave is desirable or beneficial to employees – it is about whether it is necessary to vary modern awards to achieve the modern awards objective by providing for paid FDV Leave.

However, the Commission decided that FDV Leave is a critical mechanism for employees to maintain their employment and financial security.

What is the proposed entitlement?

The proposed term will allow employees to take 10 days of FDV Leave per year at their base rate of pay. Currently employees are entitled to 5 days of unpaid leave in a 12-month period.

Will paid FDV Leave now be a NES entitlement?

No. The Commission noted that this is a matter for the Federal Government and any decision to amend the NES is separate to the proceedings in the Commission.

The decision is likely to increase focus on the major parties’ policies for gender equality ahead of the election this week.

Next steps

The ACTU and opposing parties (including ACCI, Ai Group and MGA) are now to prepare a draft model FDV Leave term based on the Commission’s provisional views, to be filed by 17 June 2022.

Directions will be made to provide interested parties with an opportunity to express their views about the draft terms filed the Commission’s provisions views it expresses about the content of the term, and to provide the Government with an opportunity to clarify its intentions regarding any amendment to the NES if it wishes to do so.

This article was prepared by Anna Creegan, Partner and Kathryn Maric, Senior Associate.

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