In March 2018, the Full Bench of the Fair Work Commission (FWC) determined to include in all modern awards an entitlement to five days unpaid family and domestic violence (FDV) leave. The new modern award entitlement came into operation on 1 August 2018. In December 2018, the Commonwealth Parliament amended the Fair Work Act 2009 (Cth) (FW Act) to include as part of the National Employment Standards (NES) a right to five days unpaid FDV leave, in terms substantially the same as the modern award model term. The modern award term was replaced, in July 2019, with a note referring to the NES entitlement. The effect of these changes is that since August 2018, all 2.23 million modern-award covered employees have had a right to five days unpaid FDV leave; and from December 2018, that right has been expanded to cover all national system employees.
The FWC determined, in March 2018, that it would review the model term after three years’ operation, to consider the following three issues:
- whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;
- whether any changes are needed to the unpaid model leave term; and
- whether provisions should be made for paid family and domestic violence leave.
Summary of the ACTU’s position
The ACTU’s position on the three issues for consideration are as follows:
- as to the first issue, the FWC does not have jurisdiction to vary modern awards to provide that employees should be able to access paid personal/carer’s leave for the purpose of taking FDV leave, and should not do so in any event, because the operational effect of the term would be detrimental to employees in that the minimum entitlement to 10 days paid personal/carer’s leave would be reduced;
- as to the second issue, no changes are needed to the unpaid model leave term as it was removed from modern awards on 25 July 2019; and
- as to the third issue, provisions should be made for 10 days paid FDV leave. Paid leave is necessary to ensure that employees are provided with a fair and relevant safety net of minimum terms and conditions of employment. The ACTU seeks a variation to modern awards in the terms at Annexure A to these submissions.