Family Domestic Violence Leave Changes

Millions of Australians will be entitled to 10 days’ paid domestic violence leave (FDV leave) per year under a landmark decision by the Full Bench of the Fair Work Commission (FWCFB) handed down on Monday, 16 May 2022. The entitlement will be in addition to the unpaid 5 days’ unpaid FDV leave that all workers are currently entitled to under the National Employment Standards (NES).

The historic provisional decision affects over 2.6 million people employed under modern awards, and likely to set a precedent for all employed Australians, the FWCFB has held workers should be able to access the leave on a yearly basis at their base rate of pay.

It is critical to note that the Labor party have previously stated that it supports 10 days’ paid leave but is yet to provide further details on their policy.

What will FDV Leave look like?

The FWCFB has proposed that paid FDV Leave would:

• be paid at the employee’s ‘base rate of pay’ as defined in the FW Act;
• accrue progressively in the same way personal/carer’s leave accrues under the NES (however it is subject to a ‘cap’ whereby the total accrual does not exceed 10 days at any given time); and
• not apply to casuals.

Additionally, the definition of family and domestic violence has been adopted from the NES as violent, threatening or other abusive behaviour by a close relative (as defined in the FW Act) of an employee.

Commission Supports Changes

“Paid FDV leave provides significant assistance to those experiencing FDV,” the FWCFB held in its historic decision.

“Such leave helps individuals to maintain their economic security; to access relevant services, and to safely exit to a life free from violence.”

In a rejection of concerns put forward by business groups, the FWCFB said take-up of the 10 days’ paid FDV leave entitlement would likely be low, “which suggests that such costs are unlikely to be substantial“

“Employers are already paying the cost of FDV – through increased absenteeism and lost productivity. Paid FDV leave will assist in reducing that cost,” the FWCFB stated. The parties have until 17 June 2022 to provide a draft model FDV leave term in accordance with the provisional views expressed by the FWCFB. The FWCFB is expected to hand down its draft directions in relation to the FDV Leave on 1 July 2022.