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Family and Domestic Violence / FDV Leave

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A landmark decision has been handed down by The Fair Work Commission providing Australian workers with an entitlement to 10 days paid family and domestic violence leave.

What is family and domestic violence?

Domestic violence is defined in the Domestic and Family Violence Protection Act 2012 (Qld) as:

  1. Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

a) is physically or sexually abusive; or

b) is emotionally or psychologically abusive; or

c) is economically abusive; or

d) is threatening; or

e) is coercive; or

f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

The Fair Work Act 2009[1]  defines family and domestic violence as violent, threatening, or other abusive behaviour by an employee’s close relative that:

  • Seeks to coerce or control the employee; or
  • Causes them harm or fear.

A close relative is defined as:

  • As an employee’s:
    • Spouse or former spouse;
    • De facto partner or former de facto partner;
    • Child;
    • Parent;
    • Grandparent;
    • Grandchild; or
    • Sibling.
  •  An employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, or
  • A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules. 

Who is covered by the decision?

Over 2.6 million Australian workers will be covered by the Fair Work Commission’s decision which includes employees on more than 100 awards. The Fair Work Commission rejected the Australian Council of Trade Unions’ submission for paid FDV leave to be available to casual workers.

Under current National Employment Standards, Australian workers are only entitled to five days of unpaid family and domestic violence leave each year.

It will ultimately be up to the Federal Government as to whether the decision will be extended to all Australian workers under the National Employment Standards.  

Why is paid leave crucial?

There are two key considerations when making the decision to leave an unsafe environment: costs and time.

Firstly, there are various costs associated with leaving a dangerous situation including utility set up, childcare, rent and moving costs. Secondly, significant time is involved with searching for rental properties, packing up belongings, accessing police services, attending Court if necessary, speaking with counsellors/teachers and organising alternative childcare arrangements.

What is the impact on employers?

Employers have expressed a concern about the cost impact this decision will have on Australian businesses. However, the Fair Work Commission has made a finding that due to the low employee rate of access to the entitlement, the cost impact on Australian businesses will be unsubstantial.

The Champions of Change Coalition’s Report found that employees who experience domestic and family violence tend to have a higher rate of absenteeism and lower levels of productivity in the workplace. The Report estimates that the impacts of domestic and family violence are costing Australian businesses around $2 billion annually. 

Australian workers will have to wait until 1 July 2022 for the Fair Work Commission to accept further submissions on the matter and hand down its draft directions.

This article was written by MDL’s family law team. Meet our team here.

[1] Fair Work Act 2009 (Cth) ss 106A – 106E, 107.

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