Award Changes - Domestic Violence Leave

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Each year in Queensland, tens of thousands of protection orders are made to help deter further acts of domestic violence from being perpetrated against victims. By the end of 2023, in an effort to curb dangerous patterns of behaviour and non-physical forms of domestic violence, coercive control will become a criminal offence in Queensland.

In May 2022, the Fair Work Commission made a provisional decision to amend awards to include paid family and domestic violence leave for permanent employees. This decision acknowledges the endemic nature of family and domestic violence and asks employers to recognise their part in supporting the safety of their employees.

Why should workplaces provide family and domestic violence leave?

Victims of domestic violence may need to take leave from work for a range of reasons, including medical or legal appointments for themselves or their children, or to flee their home temporarily or permanently.

People in family and domestic violence situations can be stressed, traumatised and anxious and could be experiencing physical injuries; all of which can affect their ability to work. To this end, it is crucial that workplaces are supportive of people who find themselves experiencing family and domestic violence and/or who are trying to escape it, no matter how many times they have tried to leave before.

The current state of family and domestic violence leave in Australia

Under the National Employment Standards in the Fair Work Act 2009, all workers currently have an entitlement to 5 days of unpaid family and domestic violence leave.

Off the back of the Full Bench of the Fair Work Commission’s Family and Domestic Violence Review 2021, it was proposed that a variation should be made to modern awards so that workers were provided with a 10-day leave entitlement (per 12 months) for paid family and domestic violence leave. Further recommendations made by the Fair Work Commission for family and domestic violence leave included that the leave would:

  • be paid in line with the employee’s ​‘base rate of pay’ pursuant to the definition in the Fair Work Act;
  • accrue in line with personal leave entitlements per the National Employment Standards (but must not exceed 10 days at any given time); and
  • not apply to casual workers.

In its recommendation, the Fair Work Commission referred to the definition of ​‘ family and domestic violence’ as set out in Fair Work Act — violent, threatening or other abusive behaviour carried out by a ​close relative of an employee.

Is it mandatory for employers to provide family and domestic violence leave?

Yes. The provision of family and domestic violence leave is currently mandated, and employees are entitled to 5 days’ unpaid leave. Although not yet mandatory, many organisations have taken it upon themselves to implement an extended leave entitlement and/or a paid leave entitlement in response to the growing need, as a way of demonstrating care for their employees and in recognition of the complexities victims of family and domestic violence may face when they are experiencing and/or escaping a domestic violence situation.

While some workplaces have doubled the mandatory unpaid leave entitlement to 10 days, others have introduced paid family and domestic violence leave. Some large organisations have even offered an unlimited paid family and domestic leave entitlement.

Prior to being elected in May 2022, the Labor Party indicated that it would be supportive of amending the Fair Work Act to include 10 days of paid family and domestic violence leave as an entitlement for employees. It is likely that the current 5-day entitlement will be increased under the Labor government.

If you are considering introducing family and domestic violence leave at your organisation, our employment lawyers can assist with policy development and implementation.