Changes to unpaid family and domestic violence leave in modern awards

Posted: 9th Aug

The right to five days' unpaid family and domestic violence leave was included in modern awards last August, including those affecting the transport industry.

Then in December 2018, The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 was passed by the Morrison Government enshrining this right in the National Employment Standards (NES).

So, on 25 July 2019, a Full Bench of the Fair Work Commission determined that the Family and Domestic Violence Leave model term is to be deleted from modern awards and replaced with a reference to the NES entitlement.

The Full Bench also decided that the reference to the NES entitlement is to be expanded by the addition of two notes, to read as follows:

Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES.

Note 1: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

Note 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.’

In its Decision, the Full Bench confirmed its proposal to revisit the model term in June 2021 after it had been in operation for three years to consider:

  • whether employees should be able to access paid personal/carer's leave for the purpose of taking family and domestic violence leave;
  • whether any changes are needed to the unpaid leave model term; and
  • whether provisions should be made for paid family and domestic violence leave.