The Full Bench of the Fair Work Commission handed down an important decision on 26 March 2018, confirming that it will grant award covered employees an entitlement to unpaid family and domestic violence leave.
The ruling followed a decision of the Full Bench from 2017, in which a claim for paid family and domestic violence leave was rejected. In the 2017 decision, the majority of the Full Bench formed a preliminary view that some provision for family and domestic violence leave should be made in modern awards, however the proposal of ten days paid leave to all employees was not necessary in the circumstances.
It has now been decided that new model award terms will provide for an entitlement to five days of unpaid leave per annum for employees who are experiencing family and domestic violence.
Under the terms proposed by the Full Bench, an employee who is experiencing family and domestic violence will be permitted take this leave if the employee needs to do something to deal with the impact of the family and domestic violence, and it is impractical for the employee to do that thing outside of ordinary work hours.
The Full Bench also decided that as this type of leave is “needs based” rather than a reward for service (like annual leave), the leave entitlement will become available to an employee in full at the commencement of each 12 month period, rather than accruing progressively throughout each year of service, although it will not accumulate from year to year.
The entitlement will be available in full to employees, regardless of whether they are employed on a full time, part-time or casual basis (ie it will not be pro rated for employees who work less than full time hours).
The exact wording of the new terms which will be inserted into modern awards to provide for this entitlement is still to be finalised in the coming weeks.
Faced with a unanimous position by various parties that it did not have jurisdiction to also permit employees to access their NES paid personal/carer’s leave entitlements for purposes associated with domestic and family violence, the Fair Work Commission has decided to defer further consideration of this issue until June 2021, as well as indicating it will reconsider whether there should be an entitlement to paid domestic and family violence leave at that time, once terms giving effect to this decision have been in operation for three years.
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*This article was prepared with the assistance of Graduate Lawyer, Jordan Nichols