Thinking | 19 May 2022
Path paved for paid family and domestic violence leave
The Fair Work Commission Full Bench has expressed its provisional view to provide a modern award entitlement to 10 days’ paid family and domestic violence leave.
The Commission has proposed that a model paid FDV leave term should have the following characteristics.
|Entitlement||10 days paid FDV leave per year.|
|Application to permanent employees only||Full-time employees and part-time employees (on a pro-rata basis) should be entitled to paid FDV leave. Casual employees should not be entitled to paid FDV leave.|
|Same accrual as personal/carer’s leave but subject to a ‘cap’||Paid FDV leave should accrue progressively across the year, like how personal/carer’s leave accrues under the National Employment Standards (NES). However, the entitlement will be subject to a ‘cap’ (ie an employee cannot accrue more than 10 days of paid FDV leave at any given time).|
|Ability to access in advance of accrual||By agreement between an employer and employee, an employee should be able to access their paid FDV leave entitlement in advance of them accruing the entitlement.|
|Paid at ‘base rate of pay’||While on paid FDV leave, employees should be paid their ‘base rate of pay’ as defined in section 16 of the Fair Work Act 2009 (Cth) (FW Act).|
|Definition of ‘family and domestic violence’||The definition should be consistent with the definition of ‘family and domestic violence’ contained in s 106B(2) of the FW Act (which defines FDV for the purposes of unpaid FDV leave under the NES).|
|Reflect unpaid FDV leave entitlement under the NES||In all other aspects, the FDV leave entitlement should reflect the terms of the current unpaid FDV leave entitlement under the NES.|
There is no indication as to when this entitlement will be inserted into modern awards, with several steps still to be taken before the model term is drafted. Even so, when inserted, this new paid entitlement will have the following impact on a business’ workforce.
|Employees covered by a modern award||> will be entitled to paid FDV leave.|
|Employees that are award-free or covered by an Enterprise Agreement||> will not be entitled to paid FDV leave.|
Impact on the NES
It remains to be seen whether any paid FDV leave entitlement will be introduced to the NES. The Commission intends to give the Federal Government the opportunity to ‘clarify its intentions regarding any amendment to the NES’ once interested parties provide feedback on the draft model.
However, to date, the Morrison Government has declined to express whether it would endorse the Commission’s provisional view. Labor has already committed to the idea.
This article was written with the assistance of Nate Cheng, Law Graduate.
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