Australia: Family Violence Leave Entitlements on the Horizon

The overwhelming majority of employees in Australia are entitled to the minimum terms and conditions provided by a combination of the ten National Employment Standards (“NES”) found in the Fair Work Act 2009 (Cth) and by an applicable industry or occupation-specific Modern Award. Modern Awards are currently being reviewed and updated by Australia’s national employment tribunal, the Fair Work Commission.

In a decision published on 26 March 2018, the Fair Work Commission ruled there should be a “model” unpaid family and domestic violence leave term inserted into all but three of the country’s Modern Awards. In making this decision, the Fair Work Commission observed that family and domestic violence has a “significant adverse impact on victims”, that it is a “gendered phenomenon” and that it has a “real and tangible impact” on employers in the workplace.

The Fair Work Commission decided that the model term would include the following elements:

• Employees will be able to access five days of unpaid family and domestic violence leave per annum;
• The leave entitlement will apply to all employees (including casuals);
• Part-time and casual employees will be able to access five days (i.e. it will not be calculated on a pro-rata basis);
• The leave entitlement will not accumulate from year to year;
• Employees will not be required to exhaust or utilise paid personal leave before accessing the unpaid domestic and family violence leave.
• The definition of family and domestic violence will be “violent, threatening or other abusive behavior by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful”.

The Fair Work Commission indicated that this “model term” should be included in all Modern Awards, unless it is satisfied that a particular industry or group of employees requires a tailored approach. At present, there are three Modern Awards which the Fair Work Commission will be considering separately: the Australian Government Industry Award 2016, the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010.

The Fair Work Commission will release a copy of the model term (which reflects the above elements) in the coming weeks.

Importantly, not all employees are covered by a Modern Award and these ‘Award-free’ workers would not benefit from the Fair Work Commission’s ruling. To resolve this inconsistency, the Commonwealth Government has pledged to amend the NES to reflect the Fair Work Commission’s ruling. This amendment – if passed by Parliament – will have two important consequences:

1) All employees covered by the Fair Work Act 2009 (Cth) will receive unpaid family and domestic violence leave regardless of whether they are also covered by a Modern Award; and

2) Employees already covered by Enterprise Agreements which do not provide for family and domestic violence leave will gain access to this new entitlement because the NES override Enterprise Agreements to the extent of any inconsistency (in favour of employees).

The above changes are likely to take effect within the next 12 months.