Court decision

Domestic violence leave and flexible working arrangements: two important decisions from the Fair Work Commission

By Andrew Tobin / 11 April 2018

The Fair Work Commission (FWC) has handed down two important decisions dealing with domestic violence leave and the rights of employees to request flexible working arrangements in the context of the four yearly review of modern awards.

Domestic violence leave

The FWC decided that all employees covered by the modern awards (some 2.3 million Australians) should be entitled to five days unpaid family and domestic violence leave each year. The entitlement:

  • will apply to all employees (including casuals);
  • will be available in full at the commencement of each 12 month period (as opposed to accruing progressively);
  • will not accumulate from year to year; and
  • will not be pro-rated.

Additionally, there will be no requirement for employees to exhaust any paid leave entitlement before accessing the unpaid family and domestic violence leave. At the same time, the FWC deferred (until 2021) any consideration as to whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave. The FWC considered it best to let the proposed system operate for three years before reassessing.

A draft model term for inclusion in modern awards to give effect to the decision will be finalised by the FWC in the coming weeks. Interested parties will be given an opportunity to comment before the model term is finalised.

Already, the Turnbull government has indicated it will amend the Fair Work Act 2009 (Cth) to extend these same entitlements to all national system workers (approximately six million people).  

It remains to be seen whether this change provides the ‘fair and relevant minimum safety net’ that the FWC hopes. As with any complex policy challenge, there is a fine balancing act required in facilitating a broader cultural shift, while not unreasonably burdening small and medium businesses with undue expense. 

‘Family friendly’ working arrangements

In a separate decision, the FWC rejected a union application to have the ‘right to request’ flexible working arrangements - as currently provided for in the National Employment Standards - replaced with an enforceable right, subject only to giving an employer ‘reasonable notice’. The FWC found that such a change would essentially give an employee the unilateral right to determine their hours, regardless of the operational constraints of the employer. 

While the FWC acknowledged that supporting labour force participation by parents and carers is a significant policy issue in Australia, it noted that allowing the union claim would fundamentally alter the employment relationship and risk leaving employers unable to properly roster staff or conduct their business. In effect, it was a step too far.

However, the FWC did propose a provisional model term to be incorporated into modern awards. The model term:

  • would extend eligibility to employees with six months continuous service, including casual employees retained for that period who have a reasonable expectation of ongoing employment;
  • will require employers, before refusing a request, to seek to confer with the employee and genuinely try to reach agreement; and
  • will require employers that refuse a request to provide a written response that includes a comprehensive explanation of the reasons for refusal, including details of any alternative work arrangements that the employer can offer.

The proposed model term retains the employer’s right of refusal on ‘reasonable business grounds’ without any right of review or appeal. The full text of the model term, which is the subject of ongoing proceedings in the FWC, can be viewed here.

For further information, please contact a member from HopgoodGanim Lawyers’ Industrial and Employment Law team.

Andrew Tobin
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.
Receive email updates of our new publications.