17 May PROPOSED 10 DAYS PAID FAMILY AND DOMESTIC VIOLENCE LEAVE

The Full Bench of the Fair Work Commission (“FBFWC”) has formed a provisional view that Modern Awards should provide an entitlement to 10 days paid family and domestic violence leave. 

Parties have been directed by the FBFWC to draft a model family and domestic violence leave term based upon the FBFWC’s provisional view by 17 June 2022 and to submit draft directions.

The FBFWC’s provisional view set out at [874] of their decision is that a model paid FDV leave term should have the following characteristics:

“1. 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 accrues under the NES, with accrual occurring accordingly to the methodology articulated by the High Court in Mondelez Australia Pty Ltd v AMWU & Ors 6 [2020] HCA 29 The entitlement should accumulate from year to year, but subject to a ‘cap’ whereby the total accrual does not exceed 10 days at any given time.

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’ should 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 should reflect the terms of s.106B.”

The FBFWC is now seeking the Federal Government’s view on whether the Federal Government would incorporate such a provision in the National Employment Standards.

Currently, the National Employment Standards provide that an employee is entitled to five days of unpaid family and domestic violence leave in a 12 month period.

The full decision of the Fair Work Commission can be accessed here:

We will keep you up to date with any further developments in this area.