The Fair Work Commission will include family and domestic violence leave into almost all modern awards. The details are currently being finalised.

Why?

Some employers may ask why, when they are trying to operate a commercial business, they are expected to share responsibility for this social and community function? The Fair Work Commission pointed to two main reasons that employers should do so.

The first is that work is more than just commercial business. Work is a social and community activity – there is dignity in work. The second reason is that productivity increases when workers are supported socially. The Commission says that family and domestic violence leave will commercially benefit business productivity and profitability.

Whether that sits easily with you or not, there is a growing recognition within the wider community of the debilitating impact of family and domestic violence on workers. Research submitted to the Fair Work Commission identified that family and domestic violence has a significant impact on workers with:

  1. 59% of women who experience domestic violence report that it has a negative effect on their work
  2. only 1 in 10 who disclose their experience of domestic and family violence to work, state that this resulted in a helpful response
  3. work is seen as a key pathway to leaving a violent relationship

Which employees?

In the draft form proposed by the Commission, the new entitlement is available for an “employee experiencing family and domestic violence, if the employee needs to do something to deal with the impact of that violence and it is impractical for them to do it outside their ordinary hours of work.” So, there are three aspects:

  1. experiencing family and domestic violence
  2. need to do something to deal with the impact of that violence”
  3. cannot do what needs to be done during “their ordinary hours of work.”

It will apply to all employees (full-time, part-time and casual) if they are covered by a modern award.

Employers will not avoid this new responsibility merely because they use common-law employment contracts. Many employees are “covered” by a modern award, even though the employer pays above award rates and uses a common-law employment contract. Being “covered” by an award is different to being paid according to the award. Many employees paid under employment contracts are still “covered” by an award and will be entitled to this leave even if the employer never refers to an award.

What?

The current proposal is for 5 days unpaid leave. It is to be available in full at the commencement of each 12-month period. It does not:

  1. accrue progressively (employees have the full 5 days when they start and then again on the annual anniversary of their commencement)
  2. accumulate from year to year (if you don’t use it each year you lose it)

Part-time and casual employees receive the full 5 days leave each year. They do not receive a pro-rata amount. Finally, employees will not have to use any available paid leave entitlements before they can access their family and domestic leave entitlement.

What to do now?

A draft model clause has been released, and the Commission is seeking employer views before making a final ruling on whether the entitlement will be in the proposed draft form. Anyone can make submissions.

We recommend that businesses should:

  1. identify which employees are “covered” by an award and for whom this leave will become an entitlement
  2. plan on implementing a family and domestic violence policy which will:

2.1. encourage employees to feel safe and supported

2.2 outline how this leave will be managed (so employers are not caught out when the entitlement is actually implemented)

2.3 identify what will be considered “experiencing family and domestic violence” and what can and cannot be done outside “ordinary hours of work”

2.4 how what you need to be satisfied that the leave comes within the entitlement – while being sensitive to the employees’ need for privacy when it comes

to family and domestic violence.

These steps will also help employers discern when the entitlement is being used for its true purpose.

If you need assistance to identify which employees will become entitled to family and domestic violence leave, wish to have us draft an appropriate family and domestic violence leave policy for your business or simply want to discuss the matter in more detail, please contact one of our team.