Ai Group has filed its comprehensive submissions and evidence in opposition to the ACTU’s claims for all awards to be varied to give employees 10 days’ per year of paid domestic violence leave. The claims are being dealt with by a Full Bench of the Fair Work Commission (FWC) in the Family and Domestic Violence Leave Case. Ai Group is playing a leading role on behalf of employers in the case.
“Domestic violence is a community problem and the whole community has a role to play in addressing it. Many businesses, particularly larger businesses, are participating in worthwhile community initiatives and are implementing policies to assist employee victims. The ACTU’s “one-size-fits-all” claim puts these positive initiatives at risk,” Mr Willox said.
“Employers have different capacities to provide support to employees experiencing domestic violence. Many large employers have relevant policies to assist employee victims, e.g. employee assistance programs. Often these policies are broader than simply dealing with domestic violence; they provide assistance to employees faced with various hardships. Smaller employers often do not have written policies but they typically adopt a reasonable and compassionate approach when their employees suffer genuine hardships. The unions’ “one-size-fits-all” approach is not appropriate,” Mr Willox said.
“There are many aspects of the unions’ claim that are not yet widely understood, including:
- Paid domestic violence leave is extremely uncommon internationally. The only country that is known to have paid domestic violence leave at a national level is the Philippines, but the entitlement is not well-known in the country or well-enforced. In its submissions, the ACTU refers to a number of US States that have granted domestic violence leave, but these entitlements are unpaid and typically only apply to larger businesses.
- Under the unions’ proposed clause:
- a full time employee would receive the 10-day entitlement on their first day of employment.
- a part time employee who works 2 days per week would receive 10 days of leave, which would be the equivalent of 5 weeks of leave for the employee.
- a casual employee who works irregularly and infrequently for an employer would be entitled to 10 days of paid leave from the employer.
- perpetrators of domestic violence would be entitled to leave, as well as victims.
- In their evidence, the unions have not established why they have chosen a 10-day entitlement for their claim.
- Only a minority of enterprise agreements include domestic violence provisions. These agreements contain a wide variety of different arrangements, leave and non-leave. Most of those that contain leave entitlements contain less than 10 days of leave, with many providing unpaid leave entitlements, or access to existing personal/carer’s leave entitlements.
- Under the Fair Work Act 2009, awards are intended to provide a safety net, with enterprise bargaining providing a mechanism to deal with entitlements above the safety net. Awards are only permitted to contain provisions which are “necessary” in order to meet the “modern awards objective” in section 134 of the Act. In two decisions in 2008 and 2009, a seven Member Full Bench of the Australian Industrial Relations Commission (now the FWC), rejected union claims for award provisions dealing with “Pressing Domestic Need Leave” on the basis that the provisions were not appropriate for awards intended to be a safety net.
Ai Group’s submission
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