The Fair Work Commission has found that workers covered by awards should be able to access unpaid family and domestic violence leave. In their final decision in the Family and Domestic Violence Leave award review test case, the majority decision of Deputy President Gooley and Commissioner Spencer prevails over the single decision of the former Vice President Watson made in February (before leaving the Commission, VP Watson rejected the ACTU application).
In summary, the FWC has accepted that FDV is a significant community issue, that it disrupts workforce participation, that it disproportionately affects women and that it requires a workplace response. Importantly, the FWC accepted that existing entitlements are not adequate to support employees experiencing FDV.
The FWC declined to grant the ACTU’s claim for 10 days paid leave at this time on the grounds that the ACTU had not met the “necessity” test in the FW Act. Instead, the FWC proposed ‘a period’ (unspecified at this time) of unpaid FDV leave in modern awards, as well as access to personal/carers’ leave for FDV purposes.
The FWC expressly indicated that their decision did not preclude a finding in the future that paid FDV leave is necessary to meet the modern awards objective. This is a world-first and a significant first step in the fight to include paid FDV leave in both modern awards and the NES.
Professionals Australia will continue to support the ACTU campaign to press for 10 days paid FDV leave, and to vigorously prosecute the argument for paid FDV leave in the National Employment Standards.