Clifford Gouldson Lawyers

Domestic Violence Clause in Modern Awards

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The Fair Work Commission recently provisionally ruled that the inclusion of a domestic violence leave clause would be inserted into 119 of the 122 modern Awards in Australia.

The new clause will allow employees affected by domestic violence to take unpaid leave if they need to do something to deal with the impact of that violence if it is impractical for an employee to do that thing outside their ordinary hours of work

The proposed clause was met with opposition, with some employer groups arguing that:

  • it was not for the Commission to prioritise certain social concerns over others
  • the establishment of separate forms of leave should be done via the National Employment Standards
  • personal and annual leave could already be accessed by employees suffering domestic violence and that modern award systems already provided avenues for these employees
  • the Fair Work Act already contains protections for employees absent from work due to domestic violence
  • the complex nature of domestic violence would make drafting such a clause ‘inherently difficult’
The Commission rejected these arguments and based their decision on a number of different reasons, stating that domestic violence was ‘ubiquitous’, as one in four women in Australia are subject to violence at some point in their life.

It was found to be a fact that family violence has a significant impact on not just individuals, but families and the general community as a whole. Being a community issue, the Commission decided that a community response was needed.

The intent of the clause is to ensure that families won’t face financial difficulties as a result of violence and that employment remained an ‘important pathway’ out of violent relationships.

It is unclear as to what type of impact the decision will have in Australia.  The argument still exists that businesses will suffer adversely and that there will be an increase in regulatory burden, however the Commission doubted that the inclusion of the clause would have any impact on productivity or the national economy.

The clause will be finalised in the coming weeks with a further hearing being held on 1 May 2018.

We intend on following the changes closely, and will post updates as they arise.


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