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On 26 March 2018, the Fair Work Commission decided to amend awards to include unpaid Family and Domestic Violence Leave. It also proposed that new Family Friendly Working Arrangements should be included in awards. 

Family and Domestic Violence Leave

Hearings on the inclusion of Family and Domestic Violence Leave in modern awards have been occurring for some time. The Australian Council of Trade Unions had most recently claimed an uncapped amount per occasion, and after that proposal was rejected sought an annual entitlement of 20 days unpaid leave.  Employer representatives argued for three days unpaid leave per year.

The Fair Work Commission Full Bench has decided that five days unpaid Family and Domestic Violence Leave per year is sufficient to provide a minimum safety net to employees – consistent with the objective of modern awards.  Untaken leave will not be cumulative. The Commission will revisit the decision in June 2021 to determine whether changes are necessary to the unpaid leave term, and whether provision should be made for paid Family and Domestic Violence Leave.

A provision model award term for unpaid leave will be published in the coming weeks and inserted into the awards shortly thereafter.  Note that the Road Transport and Distribution Award and the Road Transport (Long Distance Operations) Award – together with the Australian Government Industry Award – are not included and will be addressed separately.

The Full Bench has also expressed the view that employees should have the ability to access paid Personal/Carer’s Leave to deal with family and domestic violence issues.  It was submitted that the Commission does not have jurisdiction to make such a provision.

The matter has been listed for mention on 1 May 2018, to provide interested parties with an opportunity to make submissions on the jurisdiction and on the form of the proposed model clause.  A summary of the decision can be found here.

Family Friendly Working Arrangements

The Australian Council of Trade Unions made a claim to create a new set of employee entitlements, allowing an employee with parenting or carer responsibilities to have the right to access ‘family friendly working hours’, and the right to revert back to their former working hours arrangement within a period of two years.  The claim was opposed by the Australian Chamber of Commerce and Industry and the Australian Industry Group.

The Full Bench of the Fair Work Commission rejected the claim, because it would give an employee the right to determine their own hours of work, regardless of the employer’s operational requirements.  However, the Full Bench acknowledged that parents and carers are under-represented in the current labour force and should be afforded additional minimum safety nets to encourage greater participation.  It set out a provisional model term for inclusion in the modern awards, which would extend the current eligibility to request a change in working arrangements for parents or carers to include ongoing casual employees with six months’ service.  An employer will be required to make a genuine effort to accommodate an individual employee’s circumstances, and if a request is denied, must meet with the employee and then provide a comprehensive written reason, including details of any other changes the employer could make.

The matter has been listed for mention on 1 May 2018, to provide interested parties with an opportunity to make submissions.  A summary of the decision, including the provisional model term, can be found here.

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