Family and domestic violence (FDV) is prevalent in Australia with almost 2.2 million women and 703,700 men having experienced such violence. Not only is FDV a significant community issue affecting employees and their families, it also has wide-ranging effects on employers.
Employees experiencing FDV have increased absences and low output, which in turn affects their colleagues' productivity and costs employers in lost productivity and increased absenteeism.
FDV also causes high turnover with employees experiencing such violence potentially seeing resignation as their only option. The effects of FDV clearly affect many people beyond the person experiencing FDV first-hand and it is an issue that needs a community-wide response.
The Fair Work Commission recently expressed a view that 10 days of FDV leave should be included in modern awards and include the following characteristics:
- 10 days paid FDV leave per year.
Application to permanent employees only
- Casual employees should not be entitled to paid FDV leave.
Same accrual as personal/carer’s leave but subject to a ‘cap'
- Paid FDV leave should accrue progressively across the year however, the entitlement will be subject to a ‘cap’ (i.e. an employee cannot accrue more than 10 days of paid FDV leave at any given time).
Ability to access in advance of accrual
- Subject to agreement between an employer and employee, an employee should be able to access their paid FDV leave entitlement in advance of them accruing the entitlement.
Paid at ‘base rate of pay'
- While on paid FDV leave, employees should be paid their base rate of pay (i.e. no loadings, overtime, or commission).
It is not yet clear if or when this change will be implemented into the modern awards, as parties have been invited to make final submissions by 17 June 2022 and provide feedback on the submissions by 1 July 2022.
Should the above provision be inserted into modern awards, it will result in employees covered by a modern award being entitled to paid FDV leave. Any employees who are award-free or have an Enterprise Agreement will not be entitled to paid FDV leave.
Impact on the National Employment Standards (NES)
The Fair Work Commission has invited the Federal Government to respond and clarify whether it will introduce paid FDV leave to the NES. This would ensure that all employees would be entitled to it regardless of award coverage. Given that the federal Labor party went to the recent election committed to introducing 10 days paid FDV leave, it is likely that the now Labor government will implement such changes to the NES.
Whilst the inclusion of paid FDV leave in the NES would provide invaluable support to employees who are experiencing family and domestic violence, it is another economic cost on employers recovering from the COVID-19 pandemic. That said, the Fair Work Commission has concluded that the paid FDV provisions are unlikely to cause any significant economic loss to employers because the entitlement is unlikely to be accessed by many staff.
We will keep all members updated on this developing issue, and will be able to advise members on any implications and regulatory changes they need to keep track of once the final submissions have been made.