Following the 2017 decision ([2017] FWCFB 3494) by the Fair Work Commission (FWC) to reject the ACTU’s claim for 10 days of paid domestic violence leave, on 26 March 2018 a Full Bench of the FWC has decided to take a measured approach to the issue of unpaid domestic violence leave (see [2018] FWCFB 1691). The FWC has decided to implement an award entitlement to up to five days of unpaid leave per year for those who need to deal with the impact of domestic violence.

An employee will only be able to take the leave if it is necessary for them to do something to deal with the impact of the domestic violence, and it is impractical for them to do it outside of working hours.

Ai Group’s has played a leading role throughout the FWC’s Domestic Violence Leave Case in representing the interests of employers. In its media comments, Ai Group said that domestic violence is totally unacceptable and that employers typically take a compassionate approach when employees who experience domestic violence need to take some leave. While different employers have different capacities to provide assistance to employees experiencing domestic violence, most employers are not likely to experience problems with what the Commission has decided.

On 6 July 2018, a Full Bench of the FWC handed down a decision finalising the content of a model award clause for up to five days per year of unpaid leave to deal with family and domestic violence. The model term will be inserted into all modern awards. The FWC intends to issue determinations varying each award, with an operative date of 1 August 2018.

The FWC intends to review the operation of the unpaid domestic violence leave entitlements in June 2021 and, at that time, also consider whether any paid domestic leave entitlements should be provided and/or access granted to personal/carer’s leave entitlements.

Immediately following the FWC’s Unpaid Domestic Violence Leave Decision, the Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, announced that the Government intends to implement an entitlement to five days of unpaid domestic violence leave through amendments to the Fair Work Act.

This will have the effect of extending the unpaid leave entitlement determined by the FWC for award-covered employees to those employees who are not covered by an award. The legislation has not yet been drafted.

If you would like more information about employees’ current entitlements to leave please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about implementing domestic violence leave policies or negotiating about the inclusion of domestic violence clauses in enterprise agreements please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

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