Update: Family and domestic violence leave

The day before his resignation from the Fair Work Commission took effect, (former) Vice President Graeme Watson released his own separate decision on the future of domestic violence leave in Australia.

As one of three members of the full bench, VP Watson broke with tradition by issuing his own decision on Monday ahead of the remaining members of the Full Bench as a part of the four yearly review of modern awards.

The claim before the Full Bench was raised by the Australian Council of Trade Unions (ACTU) seeking the inclusion of an additional 10 days of paid leave in modern awards for victims of domestic violence to enable them to attend appointments (both medical and legal) and other related commitments.

In his decision, VP Watson began by stating that “the ultimate question is whether the insertion of family and domestic violence leave is necessary to achieve the objective of a fair and relevant safety net of terms and conditions.” In criticising the arguments of the ACTU, VP Watson remarked that an additional 10 days of paid leave in modern awards would come at a great cost to employers, “In [his] view this approach to the problem of domestic violence runs the risk of undermining the level of trust at the workplace and causing significant uncertainty and cost for employers.”

Despite a number of arguments in support of the additional days leave, VP Watson, in answering his initial question concluded that the claim “is not necessary to achieve a fair and relevant minimum safety net of terms and conditions of employment. The claim should be rejected.”

While VP Watson rejected the ACTU’s claim, the fact remains that until we hear from the remaining two commissioners, we do not yet have a decision on this additional leave entitlement. If even one of the two remaining commissioners support VP Watson, then the ACTU loses their claim. However, there is the possibility (with the history of VP Watson being a strong dissenter in favour of business) that the remaining two commissioners could overrule his decision in favour of the ACTU.

The outcome of this particular application will have significant implications for all employers and further information will be provided as soon as it is received from the Fair Work Commission.

Please do not hesitate to contact HR Assured should you require any advice in relation to the possible implications for your business, or guidance upon how to manage employees within your existing framework who may be experiencing domestic violence.