THE FAIR Work Commission (FWC) last week (26 March 2018) handed down its highly anticipated decision on Family and Domestic Violence Leave, providing up to five days of unpaid leave per year for those needing time to deal with the impact of domestic violence.

A Full Bench of the FWC comprising President Justice Iain Ross, Deputy President Ann Gooley and Commissioner Paula Spencer, found an allocation of five days represented a “fair and relevant minimum safety net entitlement”.

The unpaid leave entitlement will:

• apply to all employees (including casuals);
• be available in full at the commencement of each 12 month period rather than accruing progressively during a year of service;
• not accumulate from year to year; and
• be available in full to part-time and casual employees (i.e. not pro-rated) – this differs from many award entitlements for part-time employees but it is  similar to other entitlements to absence such as paid personal/carer’s leave.

The decision by the FWC to introduce access to five days of leave is seen as a compromise as it quashed the ACTU’s claim for employees to have uncapped access to unpaid domestic violence leave.

It also comes after last year’s decision to reject the ACTU’s claim for 10 days of paid domestic violence leave.

The Full Bench will draft and issue a model term giving effect to the decision in coming weeks. Interested parties will be given the opportunity to comment on the final form of the model term.

The FWC will revisit the issue of family and domestic leave again in June 2021, including whether provision should be made for paid family and domestic violence leave in modern awards.

Government to extend DV leave to cover 8 million workers

While the Full Bench decision gave more than 2.3 million workers covered by the modern awards access to five days of unpaid family and domestic violence leave per year, an Australian Government statement shortly after announced this would be extended to a further 6 million workers employed under the Fair Work Act 2009.

The joint statement from Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, and Minister for Women, Kelly O’Dwyer, said legislation would be implemented as soon as possible.

“We want to ensure a consistent safety net for employees covered by the national workplace system, so we will amend the Act in line with the final model clause to give other federal system employees access to unpaid leave on the same terms,” Minister Laundy said.

“The Fair Work Commission decision would otherwise not apply to employees who do not have their terms and conditions set by a modern award.”

Union ‘family friendly’ claims rejected

Also on March 26, the FWC Full Bench rejected the ACTU’s “family friendly work arrangements” claim, which sought to allow employees with primary care responsibilities to determine their hours, regardless of the operational considerations of the employer.

The Full Bench ruled the claim as unnecessary “to achieve the modern awards objective”.

The Full Bench instead reached a provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements.

The proposed ‘requests for flexible working arrangements’ model term would supplement the NES in the following ways:

• The group of employees eligible to request a change in working arrangements relating to parental or caring responsibilities, will be expanded to include ongoing and casual employees with at least six months’ service but less than 12 months’ service.
• Before refusing an employee’s request, the employer will be required to seek to confer with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances.
• If the employer refuses the request, the employer’s written response to the request will be required to include a more comprehensive explanation of the reasons for the refusal. The written response will also be required to include the details of any change in working arrangements that was agreed when the employer and employee conferred, or, if no change was agreed, the details of any changes in working arrangements that the employer can offer to the employee.
• A note will draw attention to the FWC’s (limited) capacity to deal with dispute.

Interested parties are invited to make submissions on the following issues:

• The terms of the provisional model term (paragraph [425] of the Decision).
• Whether the model term is permitted under s.136 (permissible terms), and in particular, whether it contravenes s.55 (interaction between the NES and industrial instruments).
• Whether the inclusion of the provisional model term in modern awards will result in modern awards that only include terms to the extent necessary to achieve the modern awards objective (s.138).

For more information on these matters or to provide feedback on the above, contact [email protected]