On Monday 26 March 2018, the Fair Work Commission provisionally ruled that a model domestic violence leave clause should be inserted into 119 of the 122 modern awards. Two road transport awards and the Australian Government Industry Award will be exempt from this clause as they are the subject of separate legal proceedings.
While many Employer groups argued against the introduction of such an unpaid family and domestic violence leave into the modern award system on the basis that:
- It is not the Commission’s role to prioritise particular social concerns over others,
- Various forms of leave, such as personal or annual leave, can already be accessed by employees suffering domestic violence;
- The modern award system already provides access to different forms of flexible working arrangements.
These arguments were rejected by the Fair Work Commission.
In makings its findings, the Full Bench of the Fair Work Commission instead determined that family and domestic violence is an ever-present issue with one in four Australian women in Australia having been affected and that remaining in employment can provide an important path for getting out of violent relationships.
The Commission further determined that family and domestic violence is a community issue that requires a community response, and that:
- The adverse effects of family and domestic violence are far reaching as they extend to not only the individual directly affected, but to their families and the general community,
- Family and domestic violence has a tangible impact on both employees and employers, and that
- Employees who experience family and domestic violence often face financial difficulties, such as relocation costs; and may suffer further economic harm due to disruptions to their ability to participate in the workplace.
The provisional model family and domestic violence clause term will enable employees affected by family and domestic violence to take a period of unpaid leave (of what is anticipated to be a maximum of 5 days) if required to support them with managing the impact of the violence (such as making arrangements for their own safety or that of their children) without negatively affecting their employment.
While the model clause is still being finalised over the coming weeks (with a further hearing being held on Tuesday 01 May 2018), the Fair Work Commission have provided the following draft model clause:
Draft Family and Domestic Violence Leave Model Term
1.1 In this [model term]:
family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.
Family member means:
(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(c) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
1.2 A reference to a spouse or de facto partner in the definition of family member in clause 1.1 includes a former spouse or de facto partner.
2. Entitlement to unpaid family and domestic violence leave .
A number of matters concerning the extent of the entitlement remain in dispute:
● Is an employee entitled to unpaid leave for each occasion that satisfies clause 3 and, if so, is there a limit on the number of days of unpaid leave that can be taken on each occasion?
● Is the entitlement to be limited to a specified quantum of unpaid leave per annum and, if so, what is that quantum?
● In relation to any specified quantum of unpaid leave entitlement:
Does the entitlement accrue progressively during a year of service or is it simply an entitlement in each 12 month period?
In the event that the entitlement to unpaid family and domestic violence leave is limited to a specified quantum of unpaid leave, then the following note is agreed:
Note: A period of family and domestic violence leave may be less than a day by agreement between the employee and the employer.
3. Taking Unpaid Leave .
An employee experiencing family or domestic violence may take unpaid family and domestic violence 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 their ordinary hours of work.
Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
4. Notice and evidence requirements.
4.1 An employee must give their employer notice of the taking of leave by the employee under this [model term].
4.2 The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
4.3 An employee who has given their employer notice of the taking of leave under this [model term] must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a purpose specified in clause 3.
Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.
5. Confidentiality .
5.1 Employers must take steps to ensure information concerning any notice given or evidence provided under clause 4 is treated confidentially, as far as it is reasonably practicable to do so.
5.2 Nothing in this clause prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.
Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee.
Employers should consult with such employees regarding the handling of this information.
An employee is not entitled to take leave under this [model term] unless the employee complies with this [model term].
HR Advice Online will continue to monitor the progress of this model domestic violence leave clause and will provide further information regarding its inclusion in the majority of modern awards as it becomes available.
HR Advice online will update our templates as changes occur.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.