Domestic Violence is a stain on all communities. It is simply unacceptable. There is no question or argument that greater efforts are needed to ensure that all Australians are safe in their own homes and free from the physical and mental abuse that can (and does) destroy lives. Late yesterday the Fair Work Commission handed down a Provisional Decision following a long and detailed review of the Family and Domestic Violence Leave. The publication of this Provisional Decision has caused a flurry of media reporting that is giving the impression that changes have come into effect now…which is not accurate. So the question is, what has changed, what is changing and what will the impact be on fuel wholesale, retail and admin staff and the businesses that employ them.
If the question is; Has leave entitlements changed overnight?, then the short and clear answer is; No. There has been no change to the Awards or the Fair Work Act, which are the instruments that employee entitlements are enumerated in.
The reason for the coverage and conversation is that the Provisional Decision from the Fair Work Commission means that very soon there will be a change to the leave entitlements. The location of the changes and their exact shape has not been determined yet, despite media reports that seem to give this impression.
In short there has been no change yet…but there will be (sometime after 1/7/2022)…and the exact details of that change are not known yet.
What is known is that for most employees across the country they will likely be entitled to 10 days paid Family and Domestic Violence Leave (for permanent staff) in the coming months.
It is helpful to understand the history and context when discussing this entitlement. In 2018 the Fair Work Commission released its first Family and Domestic Violence Leave Decision. At that time it rejected the calls for paid Family and Domestic Violence Leave (FDVL).
Following a detailed set of hearings and submissions around FDVL the Fair Work Commission has released a Provisional Decision. A Provisional Decision is a ruling that outlines the position of the Commission on a particular element, in this case FDVL. There are various reasons that a Decision may be Provisional, in this case the Decision is Provisional to allow further submissions from industry, employees and government over the exact location of the change.
The Provisional Decision released 16/5/2022 has called for 10 days paid FDVL to be provided to permanent employees.
So what has changed in the last 4 years?
The Provisional Decision outlines that there have been a series of factors that have changed since that initial FDVL Decision that have resulted in a changed view of the Commission including;
- The introduction into the National Employment Standards of 5 days unpaid FDVL
- The sharp rise in paid FDVL offered in above-award employment arrangements
- Government initiatives and Reports on family and domestic violence
- Ongoing Commission research
- Cost evidence of the impact of family and domestic violence and the impact of family and domestic violence leave
Having considered these (sometimes substantially) changed elements the Full Bench of the Commission has formed the view that; ‘the insertion into modern awards of the provisional model term for 10 days paid FDV leave is necessary to achieve the modern awards objective.’
“This view being reached by the Full Bench of the Commission means that there WILL be a change to modern awards, including the awards that apply to the fuel industry”, explains ACAPMAs Elisha Radwanowski.
So if the Decision has been made why hasn’t the change just come in?
“The only element that is up in the air is if the Commission will modify all of the modern awards to include a specific Family and Domestic Violence Leave clause, which it is preparing to do, or if the Government will take the legislative route and modify the Fair Work Act to include Family and Domestic Violence Leave as one of the National Employment Standards. Either option will see the paid Family and Domestic Violence Leave apply to all award covered employees, which is the vast majority of workers in Australia”, adds Elisha.
“The Commission has paused the usual Decision process in issuing this Provision Decisions because in 2018 a similar situation was faced, where a model FDVL term for unpaid leave was published as part of a Decision, extensively consulted on and customised for each of the 123 modern awards and inserted into each of those awards, only to be removed and replaced by a change to the Fair Work Act three months later. The Provisional Decision has been issued at this time to allow for the duplication of work to be avoided this time, to allow the Government to indicate if they intend to take the legislative route and change the Act”, explains Elisha.
The Provisional Decision calls for interested parties (Commission, employee groups, business groups and Government) to;
- provide Draft Model Terms to insert into modern awards that will provide for the FDVL by 17/6/2022
- provide Draft Directions on how to conclude the process, either through award modification or Act modification by 1/7/2022
Thereafter the Commission will either modify the modern awards, or the Act will be changed and the paid FDVL will come into effect.
“Because the final form of the changes is not known it is not clear the exact shape that the entitlements will have. What is known is that it is the Commissions position that this paid leave should not be available to casual employees”, adds Elisha.
The Full Bench of the Commission noted that while casual employees would benefit from financial support when experiencing family and domestic violence, that the nature of casual employment meant implementing paid leave, particularly taking of paid leave in the context of a lack of guaranteed hours, made listing a paid leave entitlement untenable, “It is therefore our provisional view that paid FDV leave not apply to casuals”.
Currently, family and domestic violence is defined by the Fair Work Act as; “Violent, threatening or other abusive behaviour by a close relative of the employee that seeks to coerce or control the employee and causes the employee harm or to be fearful”
In understanding this definition it is important to note that; Close relative is defined as a member of employees immediate family or relative by Aboriginal or Torres Strait Islander kinship rules. Where Immediate Family is defined as; a spouse, de-facto partner, child, parent, grandparent, grandchild, sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de-facto partner of the employee.
The current FDVL entitlement operates as follows;
Each employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period,
- The entitlement is available from day 1 of employment,
- The entitlement does not accumulate from year to year,
- The entitlement is available to casual and permanent staff,
- The leave is available if all of the following conditions are met; the employee is experiencing family and domestic violence AND the employee needs to do something to deal with that AND it is impractical for the employee to do that something outside of the employees usual work hours. So if the employee is suffering from domestic violence and has to attend court (or move house, or consult with a therapist/doctor etc) and this cannot practically be done when the employee is not usually at work, then the employee is entitled to take unpaid domestic violence leave,
- Confidentiality must be maintained by the business.
Applying for FDVL involves a process of notice and evidence that the Fair Work Act also regulates;
- The employee must provide notice of the leave that is being taken, that it is going to be family and domestic violence leave that is taken, the duration of the leave and must provide any evidence that the business requests to verify that the leave being taken is appropriate,
- Evidence that a business can request and must accept is subject to the reasonable person test – so if the evidence requested or provided would satisfy a reasonable person that the employee was entitled to take the leave then it should be accepted.
ACAPMA has been engaged in the ongoing processes at the Commission regarding FDVL (see;https://acapmag.com.au/2021/10/your-thoughts-domestic-violence-paid-leave-for-all-staff/) and engagement with Members have noted that; “While it has not come up as a leave that is often used by Members staff, it is an entitlement that is often discussed, in readiness, and almost universally members have instructed line managers to respond to any such requests with something akin to ‘you take all the time you need and you let us know if there is anything we can do to help you through’. This approach does not seem to be unique to the fuel industry”, outlines Elisha.
“While the current Family and Domestic Violence Leave structure is for unpaid leave this approach of ‘no questions asked’ comes at a real cost to the business of staff replacement, usually in the form of overtime, but this has not been something that any Member has raised as a serious concern, as usage has been limited and as noted, businesses are much more concerned with the safety of the employee. However, as with all entitlements there is the potential for misuse, a potential that dramatically increases once the leave is paid, as does the real cost on businesses” continued Elisha.
The final form of the provision for paid FDVL is hoped to provide more clarity in the area of evidence and examples once the final location of the provision is known (award or Act).
ACAPMA will continue to engage on this process and will update Members with definitive information once it is known.
To dive into the detail see;
If you have questions, or comments that you would like incorporated into any ACAPMA submission please email through to email@example.com
Elisha Radwanowski BCom(HRM&IR)