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On 16 May 2022, a Full Bench of the Fair Work Commission (FWC) handed down a decision in the Family and Domestic Violence Leave Review 2021.

The Full Bench have expressed a provisional view that a new Family and Domestic Violence Leave model term should be introduced into the Modern Awards containing an entitlement to 10 days of paid Family and Domestic Violence Leave (FDVL). The Bench provided a provisional view that such a new model FDVL term should contain the following characteristics:

  1. Full time employees and, on a pro-rata basis, part-time employees, should be entitled to 10 days paid FDVL per year.
  2. The entitlement to 10 days paid FDVL per year should accrue progressively across the year in the same way as for personal/carer’s leave does under the NES. The entitlement should accumulate from year to year, but subject to a ‘cap’ whereby the total accrual available does not exceed 10 days at any given time.
  3. The FDVL entitlement should be accessible in advance of an entitlement to such leave accruing, by agreement between employer and employee.
  4. The FDVL entitlement should be paid at the employee’s base rate of pay as defined in s.16 of the Fair Work Act.
  5. The definition of ‘family and domestic violence’ will be in the same terms as the definition in s.106B(2) of the Fair Work Act.
  6. In all other relevant respects, the model FDVL term will reflect the terms of s.106B of the Fair Work Act.

What are the next steps?

The Full Bench has directed the parties to formulate a draft model FDVL term based on their provisional views and file the draft term by 17 June 2022. Parties will have the ability to challenge the Bench’s provisional views.

The parties will also have the ability to provide the Commonwealth Government an opportunity to clarify its intentions regarding any amendments to the National Employment Standards (NES). For any amendments to be made to FDVL under the NES it will require legislation to be passed through parliament.

Whilst the FWC Full Bench decision provides a provisional view, a model term reflecting a new paid leave entitlement will no doubt be introduced into modern awards. This decision will only impact modern awards at this stage, however employers can also anticipate that 10 days of paid FDVL will be introduced into the NES in the Fair Work Act 2009 (Cth) in due course.

The AHA|SA will be providing further information to Members in relation to this new leave entitlement once it has been finalised. If any members have any questions, they can contact the Workplace Relations team at the AHA|SA office.

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