Unions have had a massive win in the Fair Work Commission, with the Commission issuing a provisional view that the insertion of 10 days paid Family and Domestic Violence (FDV) leave into modern awards is necessary to achieve the modern awards objective. 

The 266 page decision from the Commission indicated that full-time and part-time employees would be entitled to 10 days of paid FDV leave a year on a pro-rata basis. It should be paid at the employee’s ‘base rate of pay’ as defined in s 16 of the Fair Work Act. 

The Commission also noted that the entitlement should accrue progressively across the year in the same way  personal and carer’s leave accrues under the National Employment Standards (NES), subject to a ‘cap’ whereby the total accrual does not exceed 10 days at any given time, and should be accessible in advance of an entitlement to such leave accruing, by agreement between an employer and employee. 

The Fair Work Commission had accepted the union movement’s overarching argument that “FDV is a workplace issue that requires a workplace response and that paid FDV leave is a critical mechanism for employees to maintain their employment and financial security, while dealing with the consequences of FDV.”  

The Commission also accepted that the introduction of paid FDV leave will be of some benefit to employers, and acknowledged that employers are already paying the cost of FDV – through increased absenteeism and lost productivity, and paid FDV leave will assist in reducing that cost.  

Ultimately, they found that paid FDV leave would have “no significant adverse impact” on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. Furthermore, costs for employers are “unlikely to be substantial.” 

Australian Unions President, Michele O’Neil called the decision a “fantastic win” for workers.  

“This is a historic win for the union movement.  I want to thank and congratulate all unions for all their efforts and decades of campaigning on this issue,” she said.   

Unions, business and the Fair Work Commission are now working together to formulate a draft model FDV leave term, to be filed by the 17th of June 2022.  

For more information on the provisional decision, you can find the Commission’s summary here.