The Fair Work Commission has finalised the model Domestic Violence Clause which has taken effect since 1 August 2018. It is expected that a determination to insert the clause into all modern Awards will be made shortly by the Commission. Whilst there were substantial submissions from the Australian Council of Trade Unions (ACTU) for the leave entitlements under the Domestic Violence Clause to be paid, the majority decision by Deputy President Gooley and Commissioner Spencer have rejected the ACTU’s submissions and have opted for unpaid leave entitlements.
The finalised clause contains the following key terms, namely:
- The entitlement is to 5 days of unpaid leave per year, with the leave to be available at the start of employment (i.e. it does not accrue progressively);
- The leave is available to all Award employees, including casual employees;
- There are evidentiary requirements that must satisfy a “reasonable person” that leave is being taken for the purposes of dealing with Domestic Violence;
- Employers are obliged to treat notice and evidence given by a Domestic Violence affected employee with strict confidentiality, except where necessary to protect the health and safety of the employee or where required to disclose by law; and
- The leave does not accumulate year to year.
The matter of protecting employees from Domestic Violence should be of critical concern. The Department of Social Services estimates that by 2021/22, the cost of Domestic Violence to the Australian economy is estimated to be $15.6 billion. The economic costs are merely a single facet to the potential impact to employers, with staff performance and turnover, risks to workplace culture and organisational reputation being key non-economical costs.
Under the pre-existing framework, protections against Domestic Violence included the use of Individual Flexibility Agreements (IFA’s) or using other forms of leave available. In some circumstances these may have been impractical given that the request could be denied and potentially required an employee to disclose their circumstances where the employer was not under a duty of confidentiality. The new Domestic Violence clause is intended to remedy these shortcomings and provide a system which allows victims to address Domestic Violence without a fear of jeopardising their employment.
Whilst the Australian Law Reform Commission (ALRC) and the Australian Labor Party (ALP) have advocated for the inclusion of Domestic Violence leave into the NES to allow for more universal access, the Fair Work Commission has yet to make a determination. This means that the present Domestic Violence clause applies only to Award-covered employees. Award free employees such as (some) professionals will not enjoy the protections of the new Domestic Violence clause. Employers such as Telstra, IKEA and Virgin Australia have already taken proactive steps to introduce Domestic Violence leave to their workplaces, regardless of Award coverage.
Employers should take this opportunity to review their employment contracts and enterprise agreements (if any) to ensure that they are compliant with the new clause, particularly where they are an Award covered industry.
Could your company be at risk by not taking into account the new Domestic Violence clause? NB Lawyers, the lawyers for employers offer an obligation free consultation to discuss how we can assist you with any concerns you may have regarding your contracts, agreements, policies or procedures.
About the Authors
Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.
Dan Chen is a lawyer at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.