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:
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.
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