Changes to Family & Domestic Violence Leave

BY OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

On 16 May 2022, a Full Bench of the Fair Work Commission (FWC) handed down a decision ([2022] FWCFB 2001) in the Family and Domestic Violence Leave Review 2021 (AM2021/55) in the 4 yearly review of modern awards (4 Year Review). In their decision the Full Bench expressed a provisional view that a new Family and Domestic Violence Leave model term should be introduced into the Modern Awards containing an entitlement to 10 days of paid Family and Domestic Violence Leave (FDVL).

In this article we look at what changes are going to occur to FDVL and what the impacts are for employers.

MODERN AWARD REVIEW

Since 1 January 2014, the FWC has been conducting a 4 Year Review in accordance with Section 156 of the Fair Work Act 2009 (Cth) (Fair Work Act). The review process requires the FWC to review all modern awards to ensure that they are achieving the modern awards objective.

In March 2018, a Full Bench of the FWC handed down a decision ([2018] FWCFB 1691) in the 4 Year Review introducing the requirement for a model FDVL term to be inserted into all modern awards.

In a subsequent decision in July 2018 a model FDVL term was finalised which provided for 5 days unpaid leave to all employees experiencing family and domestic violence. Such leave was for instances where an 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.

At the time of FDVL being introduced, the Australian Council of Trade Unions (ACTU) had been seeking an entitlement of 10 days per year of paid leave and if that leave was exhausted an additional period of up to 2 days unpaid leave per occasion. The Bench rejected the ACTU’s proposal at the time as the extent of the utilisation of the new provisions was unknown.

In their March 2018 decision however, the Bench proposed to revisit the issue of FDVL in June 2021, after the model term had been in operation for three years. The Bench foreshadowed that they would consider whether there was the need for any changes to the unpaid leave model term and whether to allow access to personal/carer’s leave for the purposes of taking FDVL. They also stated that they would review whether a provision should be made for paid FDVL.

FAMILY AND DOMESTIC VIOLENCE LEAVE – NATIONAL EMPLOYMENT STANDARD

In 2018, the Coalition government introduced the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) to include an entitlement to unpaid family and domestic violence leave as part of the National Employment Standards (NES). The amendments mirrored the model FDVL term in modern awards and the new entitlement was subsequently included in the NES effective from December 2018.

As a result of unpaid FDVL being included in the NES, the FWC in July 2019 decided to remove the model FDVL term in modern awards and replace it with reference to the NES.

The inclusion of FDVL in the NES meant that it also became a minimum standard for employees pursuant to an Enterprise Agreement and Award/Agreement free employees.

FAMILY AND DOMESTIC VIOLENCE LEAVE REVIEW

In a statement issued on 15 April 2021 ([2021] FWCFB 2047) the FWC announced that they would be commencing their review of family and domestic violence terms in modern awards.

The following issues were considered as part of the FDVL Review:

• Whether employees should be able to access paid personal/ carer’s leave for the purpose of taking family and domestic violence leave;

• The adequacy of the unpaid family and domestic violence leave entitlement; and

• Whether provisions should be made for paid family and domestic violence leave.

The FDVL Review took into consideration a range of data including the following research information:

• A review of literature and data that examined the prevalence and impacts of family and domestic violence.

• An analysis of terms in Enterprise Agreements dealing with family and domestic violence.

• A qualitative assessment on employee’s experience of family and domestic violence by exploring their interaction with support services.

• A survey of employers seeking information on the use and operation of the unpaid family and domestic violence leave entitlement.

As part of the FDVL Review, the ACTU filed a claim that sought to vary all modern awards to insert an entitlement to 10 days paid FDVL in a 12-month period and up to 5 days unpaid FDVL on a per occasion basis. A number of employer groups including the Australian Chamber of Commerce and Industry opposed the ACTU’s claim.

The Full Bench conducting the Review made a number of findings generally in relation to family and domestic violence, including:

• That the COVID-19 pandemic has seen an increase in the prevalence of family and domestic violence.

• Family and domestic violence disproportionality affects women.

• Family and domestic violence has a real and tangible impact on employees and employers in the workplace.

• Women who experience family and domestic violence are more likely to be employed on a casual or part-time basis.

• Employment is an important pathway out of violent relationships.

• There is a greater prevalence of 10 days paid FDVL becoming an industrial standard in bargaining and over-award arrangements.

As a result of these findings, the Full Bench conducting the Review provided a provisional view that a new model FDVL term should be introduced into all modern awards and that such a term should contain the following characteristics:

1. Full time employees and, on a pro-rata basis, part-time employees, should be entitled to 10 days paid FDVL per year.

2. The entitlement to 10 days paid FDVL per year should accrue progressively across the year in the same way as for personal/ carer’s leave does under the NES. The entitlement should accumulate from year to year, but subject to a ‘cap’ whereby the total accrual available does not exceed 10 days at any given time.

3. The FDVL entitlement should be accessible in advance of an entitlement to such leave accruing, by agreement between employer and employee.

4. The FDVL entitlement should be paid at the employee’s base rate of pay as defined in s.16 of the Fair Work Act.

5. The definition of ‘family and domestic violence’ will be in the same terms as the definition in s.106B(2) of the Fair Work Act.

6. In all other relevant respects, the model FDVL term will reflect the terms of s.106B of the Fair Work Act.

WHAT ARE THE NEXT STEPS?

The Full Bench has directed the parties to formulate a draft model FDVL term based on their provisional views and file the draft term by 17 June 2022. Parties will have the ability to challenge the Bench’s provisional views.

The parties will also have the ability to provide the Commonwealth Government an opportunity to clarify its intentions regarding any amendments to the NES. For any amendments to be made to FDVL under the NES it will require legislation to be passed through parliament.

IMPLICATIONS FOR EMPLOYERS

Whilst the FWC Full Bench decision provides a provisional view, a model term reflecting a new paid leave entitlement will no doubt be introduced into modern awards.

Employers can also anticipate that 10 days of paid FDVL will be introduced into the NES in the Fair Work Act. The Albanese government had flagged as part of their industrial relations election platform that they would be supporting legislative amendments to introduce 10 days of FDVL in the NES.

So, what will employers need to do when the changes to FDVL are introduced;

• Employers should update their existing policies and procedures to reflect the new paid leave provisions and ensure that procedures are clear on how an employee can access such leave and any evidence required by the employer.

• Ensure that payroll systems are updated to provide for the accrual of paid FDVL.

• Ensure that employees are aware of their ability to access such leave arrangements and that the employer can provide support to any team members suffering from family and domestic violence.

The AHA|SA will be providing further information to Members in relation to this new leave entitlement once it has been finalised. If any members have any questions, they can contact the Workplace Relations team at the AHA|SA office.