Issue 9 2021 - Paid family and domestic violence leave for awards?

Updated: Jun 28

The Fair Work Commission (“FWC”) has launched a “major case” under which it will determine – by the end of this year – whether to extend the current unpaid leave clauses in awards and to perhaps grant paid leave. The push for paid family and domestic violence leave is gaining momentum. Employers should be ready for changes to these award entitlements.



Unpaid family and domestic violence leave of up to five days per year was introduced to 123 modern awards in 2018. The ACTU had pushed a claim for ten days paid leave per year. In 2019, when the government inserted the provision into the National Employment standards (“NES”), the FWC decided to remove the model term from awards and to insert a note referring to the NES entitlement.

The FWC proposed to revisit the award provisions this year. The ACTU has claimed that paid leave is necessary as a safety net, based in part in increased instances of family and domestic violence during the pandemic.

What will happen next?

In a Statement issued on 15 April, the Full Bench proposed a formal review to consider:

  • whether employees should be able to access paid personal/carer’s leave for family and domestic violence leave;

  • the adequacy of the unpaid family and domestic violence leave entitlement; and

  • whether provisions should be made for paid family and domestic violence leave.

As part of the case, the FWC will conduct an extensive research program which will include:

  • a review of literature and data on the prevalence and impacts of family and domestic violence;

  • analysis of terms in enterprise agreements dealing with family and domestic violence;

  • examining employees’ experience of family and domestic violence by exploring their interaction with the various support services and systems; and

  • a survey of employers seeking information on the use and operation of the unpaid family and domestic violence leave entitlement.

What should employers do?

All employers should engage meaningfully with the subject of unpaid and paid family and domestic violence leave. We recommend at least gathering information about the use of your existing provisions. Any employer with an enterprise agreement negotiation falling this year should be mindful that the award is likely to change. We can assist employers to analyse and prepare their approach for bargaining in this context.

Employers seeking to be part of the FWC review can contact EMA Consulting to discuss options.

Require further information/assistance?

If you require further information or advice, please contact your Consultant.