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FWC issues decision on family and domestic violence leave

Posted on : Monday, 10 July 2017

The Fair Work Commission (FWC) has rejected an ACTU application to vary all modern awards by inserting a provision for 10 days paid leave. This recent decision follows the earlier single decision of the presiding member, Vice President Graeme Watson. Mr Watson had issued his decision on 27 February 2017, one day before his resignation from the FWC. This action then led to a jurisdictional question of law before the Federal Court.


The Federal Court had said, in considering this issue, that a case management hearing would involve complex questions but that as a simpler alternative it could be brought to the court as a special case. This led the president of the FWC to discontinue a special case and decided that the Fair Work Act allowed for the remaining two members of the Full Bench to hand down their decisions. This action may be challenged in the future, but in handing down their decisions, the FWC could then allow any challenge to proceed.


The decision of the remaining two members of the bench was to dismiss the ACTU's application. Nevertheless, they said that they had formed the "preliminary view that while it is necessary to make provision for family and domestic violence leave…they were not satisfied, at this time, that it is necessary to provide 10 days paid family and domestic violence leave to all employees covered by modern awards".


"All employees should have access to unpaid family and domestic violence leave and in addition, that employees should be able to access personal/carer's leave for the purpose of taking family and domestic violence leave," the bench decision stated.

All three FWC members accepted the importance and significance of the problem of family and domestic violence. Mr Watson identified that in a large business, an occasional absence from work may not have a significant impact on the business, however in a small business unplanned absences could have a much greater impact. He said it was especially important to approach with care any new forms of paid leave which can be taken without advanced notice. The desirability of an open and cooperative approach is perhaps more important in small businesses. The problems arising from uncertainty as to the precise reach of the proposed entitlement are magnified in small businesses.