Removing the stigma: Access to family and domestic violence leave

In 2014, the Australian Council of Trade Unions sought to vary all modern awards to include an entitlement to 10 days of paid Family and Domestic Violence (‘FDV’) leave per year. That claim was rejected by the Fair Work Commission (‘FWC’), but in July 2017 the FWC expressed a preliminary view that all employees should have access to unpaid FDV leave. That preliminary view was subsequently confirmed by the FWC in March 2018 and all modern awards were varied to include a right for all employees (including casuals) to take five days unpaid FDV in each 12 month period from 1 August 2018.

The Fair Work Act 2009 (Cth) was subsequently amended to include an entitlement to unpaid FDV leave as part of the National Employment Standards (‘NES’) in substantially the same terms as the model award with that new entitlement commencing in December 2018.

The FWC review and a new entitlement

In May 2022, the FWC completed their four yearly review of the modern awards, including consideration of whether modern awards should be varied to include paid FDV leave. As part of its review the FWC made significant findings in relation to FDV:

• FDV disproportionately affects women;
• After the age of 15, one in four women experience at least one incident of violence by an intimate partner;
• On average, one woman every 10 days in Australia is killed by an intimate partner;
• FDV significantly increased during the COVID-19 pandemic and has had a significant adverse effect on those who experience it, as well as their families and the general community;
• Women who experience FDV have more disrupted work history, lower personal incomes, more frequent job changes and are more likely to be employed in casual or part time roles than women with no experience of violence;
• Employment is an important pathway out of violent relationships, by providing financial security, independence, social networks and increased self-esteem; and
• By some estimates, the impact of FDV costs employers up to $2 billion a year.

At the time of writing, the Commonwealth Government is expected to introduce legislation into parliament, effectively adding FDV leave to the NES from February 2023 and from August 2023 for small businesses. Notably, casual employees will also be entitled to FDV leave under the Labor Government’s plan.

FDV is both a cause and a consequence of gender inequality. Employees who experience FDV often face financial difficulties. This may be the result of, for example, relocation costs, becoming a sole parent or suffering economic harm as a result of disruption to workplace participation.

The FWC has formed a provisional view that a model FDV clause will be inserted into the 123 modern awards. The proposed clause includes 10 days paid FDV leave per year for full time employees and this will be pro-rated for part-time employees. The 10 days will accrue (like annual leave) over the year and will be capped at 10 days. However, unlike annual leave, FDV leave will not accrue year on year. It will be accessible in advance and will be paid at the employees’ base rate of pay.

The aim of the paid FDV leave is to help individuals maintain economic security and, to the extent that the leave may reduce FDV, improve workplace productivity and efficiency. While FDV may cost employers a further 10 days paid leave, the hope is that it will bring increased stability to the workforce overall.

The provision has yet to come into effect. However, it is the provisional view of the FWC that it will be adopted into the modern awards.