Authored by Employment Law team members Christie Toy and Nicholas Jackman.
Under current employment schemes, an individual experiencing domestic and family violence has no entitlement to additional paid leave. This is deeply concerning when one considers the devastating impacts that domestic violence has on an individual and their loved ones. The last thing needed is added concerns about leave allowance.
In attempts to address this defect, the Australian Council of Trade Unions brought a claim before the Fair Work Commission, advocating for ten days of paid family and domestic violence leave to be inserted into modern awards. This time would be invaluable to victims, granting them an opportunity to attend necessary appointments without sacrificing much needed pay.
Commission rejects paid leaveUnfortunately, the Fair Work Commission rejected the Union’s case. In a decision handed down on 3 July 2017, the Commission found it was not necessary for employees covered by modern awards to be provided with additional paid leave entitlements.
Although this is a disappointing result for individuals affected by domestic and family violence, the decision heralds a long-awaited recognition of the need for additional protections and entitlements for victims of domestic violence under employment law schemes.
Unpaid leave for domestic violence victimsAlthough paid leave was dismissed, the Fair Work Commission listened to the arguments raised by the Union and agreed with many points raised throughout the hearing.
Ultimately, the majority formed the view that a need for unpaid family and domestic violence leave does exist. Furthermore, victims experiencing family violence should be granted access to personal and carer’s leave.
A step in the right directionAlthough the Union's case was ultimately rejected, the Commission’s recognition of the need for active support for victims of family and domestic violence is a small step in a positive direction. With constant, incremental change, we can work towards securing the widespread, collaborative reform needed to overcome domestic abuse.
As a nation, there is still a long way to go, but decisions such as this help spread the message that sufferers of domestic and family violence are not alone.
Written by Shine Lawyers. Last modified: September 26, 2018.