The push for domestic violence leave in modern awards has been successful with the Fair Work Commission deciding on five days’ of unpaid leave.

All employees – including casuals – will be entitled to unpaid family and domestic violence leave, the Fair Work Commission has decided.

The Commission confirmed it views family and domestic violence as “a community issue and requires a community response”. It will change all 122 modern awards to insert a model clause entitling employees (including casuals) to five (5) days of unpaid family and domestic violence leave.

Fresh HR Insights will have a domestic violence policy available for soon as the wording of the clause is finally decided.

What is family or domestic violence leave?

Family or domestic violence leave will be available in the event that the employee needs leave to take actions to deal with the impact of the family and domestic violence and it is impractical for them to do it outside their ordinary hours of work.

This could include by way of example, making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

How does the leave accrue?

Five days of unpaid leave will be available at the commencement of each 12 month period rather than accruing progressively during a year of service.

The leave will not accumulate from year to year.

Most significantly, the full five days of unpaid leave will be available to part-time and casual employees. This is different to some other forms of leave (e.g. annual leave) which are pro-rated for part-time employees or not provided at all to casual employees.

What is a model clause?

A model clause means the terms of the clause will be identical in all 122 modern awards and will be finalised in the coming weeks.

What will this mean for your business?

The extent to which employees will access the new entitlement to unpaid leave is unknown, as is its impact on businesses.

The Commission therefore proposes to revisit the issue in 2021, after the model term has been in operation for three years.

At that time the Commission will consider:

  • whether any changes are needed to the unpaid leave model clause;
  • whether to allow access to personal/carer’s leave (for the purposes of family or domestic violence leave); and
  • whether the Commission should re-visit the possibility of paid family and domestic violence leave in modern awards.

When will Fresh HR Insights Domestic Violence Policy be ready?

The Commission did not release the drafting of the new domestic violence leave clause, which means there are several issues which are still unclear, including:

  • the technical definition of ‘domestic violence’
  • the evidence requirements for taking the leave
  • whether an employee can use personal/carer’s leave for domestic violence leave purposes.

Fresh HR Insights new policy will be released as soon as the terms of the domestic violence leave clause are finalised in the modern awards. The Commission has indicated it will be some weeks before we see the draft final clause. Watch this space!

Written by Australian Business Lawyers & Advisors on 27th Mar 2018
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