Australian workers to get five days of unpaid domestic violence leave following Fair Work decision

The Fair Work Commission has ruled that all Australian employees covered by modern awards will be entitled to five days of unpaid leave if they are affected by family or domestic violence.

As part of the Commission’s four-year review of modern awards, the union movement had called for 10 days of paid domestic violence leave for all workers.

But the Commission decided on Monday that the most appropriate course of action to address the impact of family violence in the workplace is to allow all workers covered by modern agreements, including casuals, to access five days of unpaid leave if they “need to do something to deal with the impact of family and domestic violence and it is impractical for them to do this outside of their ordinary hours of work”.

In response to the decision, Small Business Minister Craig Laundy and Minister for Women Kelly O’Dwyer said the federal government will introduce legislation into Parliament “as soon as possible” so that all Australian workers, not just those covered by modern award agreements, would be able to access the same leave entitlements.

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

The Fair Work Commission said that over the past year it had held a number of conferences to consider the best “model term” for a standardised domestic violence leave entitlement.

The Australian Council of Trade Unions (ACTU) had suggested a number of possible models to the Commission, including extending 10 days of paid domestic violence leave for all employees. It also suggested that unpaid leave taken for family violence reasons should be provided on an uncapped, per occasion basis according to the circumstances.

However, the Commission decided that a standard of five days leave is a “fair and relevant safety net entitlement”, adding that it has taken a “cautious regulatory response to this issue.”

ACTU secretary Sally McManus said in a statement this morning the decision as it stands will not help workers address situations of family violence, because a short period of unpaid leave does not help vulnerable workers.

“The Turnbull Government’s proposal is five days of no income. Nothing to help pay the lawyer bill. Nothing to help move to a safer home. Nothing keep the lights on,” she said.

A “model term” outlining the exact clause to be included in the modern award is yet to be drafted, and will be reviewed at a hearing on May 1, 2018.

Read more: Why COSBOA’s Peter Strong believes we need government-funded domestic violence leave

Trust is key to this policy

Workplace lawyer Peter Vitale says based on his experience, most employers are incredibly sensitive to the needs of workers facing family and domestic violence, but businesses must have up-front conversations with staff if they are to smoothly transition to this new leave requirement.

“Employers are already sympathetic to people in these circumstances. I think employers will generally want to be supportive, but I think employers need to have discussions with employees about the best way to handle an absence,” he says.

Speaking with staff about how they can notify their managers of a need to take this leave, and the processes that go with it, will go a long way to smoothing the way if any misunderstandings do emerge when an employee needs to use this leave entitlement, he says.

“It’s about minimising frustrations for both parties, and avoiding surprises,” says Vitale.

Regardless of the circumstances, Vitale observes that staff absences can cause frustration particularly for small businesses, especially if the employer has not thought ahead about the possibility that staff may need to take leave.

“This is not because they are not unsympathetic, but often just because they have businesses to run,” he says.

By starting to discuss processes for taking family or domestic violence leave now, Vitale says both staff and employers can feel listened to and supported as this policy is enacted.

“It’s about building trust in both directions,” he says.

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