In a recent Fair Work Commission decision, the Full Bench held five days’ unpaid leave per annum would be provided to all award-covered employees (including casuals) experiencing family and domestic violence.

This decision follows the Full Bench’s rejection of an ACTU claim for paid family and domestic violence leave in 2017.  However, the Full Bench also expressed a preliminary view that family and domestic violence leave was necessary to:

• meet the modern award objectives under the Fair Work Act 2009 (Cth);
• recognise the importance of implementing measures to address this societal issue; and
• provide employees with greater protection in confirming such unpaid leave as a workplace right.

In respect of the five days’ unpaid leave entitlement, the Full Bench (Justice Ross, Deputy President Gooley and Commissioner Spencer) held that:

• an employee is permitted to take leave if the employee needs to do something to deal with the impact of that domestic violence and it is impractical for them to do outside their ordinary hours of work;
• the entitlement will apply to all employees including casual and part-time employees (but not pro-rated employees working less than full time hours);
• the entitlement will be available in full at the commencement of each 12-month period; and
• the entitlement will not accumulate from year to year.

Notably, the Full Bench deferred its consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave. 

A model term has been drafted and is now the subject of a consultation process.

The Full Bench proposed to revisit the following issues in June 2021 after the model term has been in operation for three years:

• whether any changes are needed to the unpaid leave model term;
• whether to allow access to personal/carer’s leave; and
• whether provisions should be made for paid family and domestic violence leave.

In any event, we anticipate there will be ongoing developments in relation to domestic violence leave, especially as we move towards the next Federal election. 

To discuss this further or for more information please contact:

Jasmine O'Brien
Principal
Sladen Legal
T +61 3 9611 0149  l M +61 401 926 108
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: jobrien@sladen.com.au                                                                                                            

Katherine Dennis
Senior Associate  
Sladen Legal
T +61 3 9611 0151 | M +61 407 013 010
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: kdennis@sladen.com.au