Resources: Blogs

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

Blogs
|

FWC considers push for paid domestic violence leave

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

Full Bench makes changes to the Professional Employees Award

Time to be professional

The Full Bench of the Fair Work Commission has determined that it is appropriate to vary the Professional Employees Award 2020 to better deal with the hours of work and overtime as well as clarify the coverage for employees.

Read more...

Expired COVID-19 schedules in modern awards removed

In April 2020, the Fair Work Commission introduced temporary measures in modern awards in response to the need to provide employers and employees flexibility in the context of the COVID-19 pandemic and lockdowns.

Read more...

Annual Wage Review Decision 2022

Special Edition E-Update

The Fair Work Commission’s Expert Panel has announced the outcome of its annual review of the national minimum wage and minimum wages under modern awards.

Read more...

Commission confirms inappropriate touching constituted sexual harassment warranting summary dismissal

‘Scuse you

Sexual harassment in the workplace has been the subject of significant reform over the past few years, with an even greater onus on employers now to take proactive measures to minimise or eliminate the risk of sexual harassment in connection with work.

Read more...

Employers delay sinks bid for injunctive relief

Speak now

When seeking to enforce a restraint, it is important that employers seek to enforce the restraint in a timely manner to prevent future or an ongoing breach. Any delay will be considered by the courts when assessing whether it is reasonable to enforce the restraint.

Read more...

Two-year post-employment restraint on hairdresser found to be unreasonable

Splitting hairs

When it comes to drafting post-employment restraints in employment contracts, it is important for employers to consider the purpose of the restraint and whether or not the restraint reasonably serves that purpose.

Read more...

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.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.