Circular 2018/2: Family and Domestic Violence Leave Clause: Fair Work Commission’s decision to include model term in all modern awards

1. On 6 July 2018, the Fair Work Commission finalised the content of the model family and domestic violence leave term. The term provides five days unpaid leave to deal with family and domestic violence will be inserted in all modern awards as part of the four yearly review of modern awards.[1]

Family and domestic violence

2. The term defines family and domestic violence to mean violent, threatening or other abusive behavior by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

Implications

3. This new clause applied to 123 industry awards from the first full pay period on or after 1 August 2018, including the Australian Government Industry Award 2016 (AGIA).[2]  The AGIA covers most Commonwealth bodies not covered by the Public Service Act 1999 or agency-specific enterprise awards.

4. The inclusion of a new clause in modern awards forms part of the Better Off Overall Test (BOOT).  An enterprise agreement passes the BOOT if the Fair Work Commission (FWC) is satisfied that terms and conditions of an agreement are better off overall than if the relevant modern award applied.

5. The BOOT assesses whether employees covered by an enterprise agreement are better off on a global basis against the Award.

6. Australian Government employees currently have access to generous paid leave for family and domestic violence through existing leave entitlements, such as personal/carer’s and miscellaneous leave.

7. It is possible the FWC in deciding whether to approve an agreement will require agencies to make undertakings to include a separate leave type for family and domestic violence leave.

8. Currently, there is no schedule to consider the inclusion of the model term in the Australian Public Service Enterprise Award 2015 or other Commonwealth enterprise awards. This will occur after the FWC has finished the majority of its work on industry awards.

Enterprise Agreements

9. The Workplace Bargaining Policy 2018 encourages agencies to put policies and practices in place that provide the maximum support available for employees affected by family and domestic violence.

10. The use of Personal/Carer’s Leave or Miscellaneous Leave for employees affected by family and domestic violence can be made available through enterprise agreements.

11. The APSC encourages agencies to adopt a holistic approach in supporting employees affected by family and domestic violence. This includes providing access to flexible working arrangements, employee assistance programs and employee safety plans.

12. Agencies should ensure their employees who are suffering from domestic violence are be given the maximum appropriate support.

13. A template Domestic and Family Violence Policy is available on the APSC’s website.

14. For agencies covered by the AGIA and who use Common Law Contracts to set the terms and conditions of employment, the model term will become the minimum entitlements.

Further information and advice

15. Contact your APSC relationship manager or email workplacerelations@apsc.gov.au.

[1] Ross J, Hatcher VP, Spencer C, 4 yearly review of modern awards – Family and Domestic Violence Leave [2018] FWCFB 3936.

[2] Schedule of determinations, Family and domestic violence clause (AM2015/1).