On 26 March 2018, the Hon Craig Laundy MP (Minister for Small and Family Business, the Workplace and Deregulation) and the Hon Kelly O’Dwyer MP (Minister for Women) released a joint statement on behalf of the Turnbull Government, announcing that all Australian workers covered by the Fair Work Act 2009 (Cth) will have access to five days’ unpaid family and domestic violence leave per annum.

This follows a decision from the Fair Work Commission (FWC), who last week ruled that Australians who are employed under modern Awards, and who are experiencing family and domestic violence, will be entitled to five days’ unpaid annual leave.[i]

Background

Last year, the Full Bench of the FWC refused an Australian Council of Trade Unions’ (ACTU) application for ten days’ paid family and domestic violence leave.[ii] The ACTU formed their submissions on the basis that Australians who are experiencing family or domestic violence “require time and financial independence to make themselves, and sometimes their children, safe”.

Though the FWC in the 2017 decision formed the preliminary view that the provision of family and domestic violence leave was necessary, they were not persuaded that the leave should be a paid entitlement spanning 10 days.

The ACTU also argued for additional family and domestic violence leave to either be provided on an uncapped basis, or on a 20-day unpaid leave arrangement; both of which were not upheld.

National implementation

As determined by the FWC, the unpaid, five day model term will not accumulate from year to year and will be available to all employees (part-time, full-time or casual) at the commencement of each 12-month period, rather than accruing progressively.

While five days’ unpaid leave falls short of the ACTU’s initial submissions to the FWC, the Turnbull Government has pledged to amend the Fair Work Act 2009 (Cth) to extend the five-day term to all Australian employees.

Commenting on the Government’s proposal, Sally McManus of the ACTU has acknowledged five days’ unpaid leave is a “very small step in the right direction”, yet maintains that “10 days’ paid (family and domestic violence) leave is the minimum … no worker should have to choose between keeping their job and keeping their family safe.”

Access to personal/carer’s leave

In reaching their decision, the FWC expressed a preliminary view that “employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.”

However it is unclear whether this will be effected, as submissions made to the FWC have argued that the Full Bench lacks the requisite jurisdiction to tap into the personal/carer’s leave entitlements under the National Employment Standards.

The FWC intends to hold a review of the five day unpaid term in 2021.

Key takeaways

  • Australians who are currently employed under a modern Award will be entitled to five days unpaid family and domestic violence leave.
  • Holding Redlich will keep all interested parties updated as to the Government’s proposal to amend the Fair Work Act 2009 (Cth).

Family and domestic violence not only affects those who suffer it, but also those who are exposed to it. It is an issue that can impact all aspects of life, including workplaces, and requires specific action. If you, or anyone you know, are experiencing family or domestic violence you can contact:

  • 1800RESPECT – 24-hour national sexual assault, family and domestic violence counselling line for any Australian who has experienced, or is at risk of, family and domestic violence or sexual assault (ph: 1800 737 732)
  • Lifeline – Lifeline has a national number that can help put you in contact with a crisis service in your State. Anyone across Australia experiencing a personal crisis can call (ph: 13 11 14).