Resources: Blog

FWC considers push for paid domestic violence leave


Domestic violence is an issue that employers are now increasingly being forced to manage

As part of the four yearly review of modern awards, the Fair Work Commission (FWC) is considering the proposal made by the union movement to insert a family and domestic violence leave (FDVL) clause into all modern awards.

As part of the four yearly review of modern awards, the Fair Work Commission (FWC) is considering the proposal made by the union movement to insert a family and domestic violence leave (FDVL) clause into all modern awards.

In 2014, the Australian Council of Trade Unions (ACTU) applied to the FWC to have a FDVL clause inserted into modern awards. The ACTU’s current proposal is:

  • for employers to provide access to 10 days per year of paid family and domestic violence leave and an additional 2 days of unpaid leave on each occasion where paid leave is exhausted for “an employee who is experiencing family and domestic violence.
  • Employees would be able to use the leave for medical and counselling appointments, to attend legal proceedings or appointments with lawyers, or for the purposes of relocation or making other living arrangements and other activities which may be required.

In response, the Australian Industry Group (AiG) has submitted that while family and domestic violence is a social problem it is not an issue for modern awards as the Fair Work Act 2009 (Cth) contains protections and entitlements for employees who are victims of family and domestic violence. In addition, AiG has submitted that the ACTU’s proposed draft clause does not clearly exclude perpetrators of domestic violence from accessing the leave.

Unfortunately, domestic violence is an issue that employers are now increasingly being forced to manage even though it is not a traditional employment related issue. For example, the Full Court of the Federal Court of Australia’s decision in Eliana Construction and Developing Group Pty Ltd v M [2016] FCAFC 113, considered an appeal by the Employer against the decision of Commission Roe of the FWC and the Full Bench of the FWC.

In this matter the Employee was a victim of domestic violence by her partner who also worked for the Employer. An intervention order was granted which prohibited the Employee’s partner from approaching less than three metres to the Employee. Shortly after this, the Employer terminated the Employee’s employment.

At first instance, Commissioner Roe determined that the Employee did not resign and was terminated because of the Employer’s belief that the intervention order would mean that the Employee could not work in the office. Commissioner Roe commented that “I accept that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees.” However, for Commissioner Roe, the Employer did not attempt any measures to accommodate the intervention order.

Commissioner Roe held that the intervention order was not a valid reason for termination and that the dismissal was unfair. He made an order for the Employee to be awarded $27,500.00 in compensation. In relation to the appeal application, the Full Bench of the Federal Court dismissed the appeal and held that it was without basis.

The involvement of employers in domestic violence matters is a complex issue given the very personal non-employment related issues involved. We will watch the case before the FWC with interest and keep you updated.


Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.


Similar articles

COVID-19 and modern award variations

COVID-19 and modern award variations

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.


Employers’ consultation obligations when implementing major workplace change

How was I supposed to know?

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.


How a region banded together to improve employment standards

Group Effort

No employer operates in a silo – all employers operate in complex systems of interrelated stakeholders including employees, customers, other businesses, and regulators who enforce the laws that apply to the employer and their business.


The onus and presumption in adverse action matters

It’s on you

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.


Notice of termination in the employment contract

Put it in writing

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.


Termination of employment letters

In your letter

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.