Fair Work Commission Update – Domestic Violence Leave & Casual Entitlements

The Fair Work Commission has been busy over the last month, with two major decisions impacting on employers: Domestic Violence Leave for Award-covered employees and a decision regarding the true nature of casual employment (the WorkPac decision).

Both these updates again raise the need for employers to stay up to date on decisions by the Fair Work Commission, and changes to Award provisions.


Domestic Violence Leave – Award-covered Employees

Earlier this year we advised that the Fair Work Commission (FWC) had completed its four-yearly review of modern awards and had ruled that domestic violence leave would be covered by modern awards moving forward.

Acknowledging the seriousness of domestic violence as a social issue, the FWC stated in their summary that “The circumstances faced by employees who experience family and domestic violence require a special response”.

What do I need to know?

As of 1 August 2018, this clause came into effect. All workers covered by modern awards now have access to five days of unpaid domestic violence leave per year.

This entitlement is available to both permanent and casual employees alike and will be available in full at the commencement of each 12-month period, however it does not accumulate from year to year.

How does this affect me?

Now that this clause is in effect, you will need to allow for all award-covered employees to access this entitlement for domestic violence leave.

In accessing this leave, you are entitled to ask employees to provide evidence to support the leave application. Types of evidence can include documents issued by the police service or the court, statutory declarations or family violence support service documents. The evidence must convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.

What do I need to do?

Now that this leave is available to Award covered employees, your best course of action is to:

  1. Review existing policies and procedures dealing with entitlements such as leave to ensure inclusion of this new entitlement;
  2. Provide information, whether verbal or written, to employees regarding how this new entitlement will interact with their existing entitlements; and
  3. Update the ‘back end’ of your accounting or record keeping system to include domestic violence leave, in the case you need to process this type of leave in your systems.

We genuinely hope that this particular type of leave is never required by any person within your business, however these three actions will make sure you are knowledgeable and prepared regarding this change in entitlements for your employees.


If this has raised any concerns for you or any members of your team, we encourage you to contact White Ribbon for further support.


Feel free to reach out if you would like some support in understanding and implementing these changes.

You can contact us at yourteam@seedpeopleconsulting.com.au or call us on 02 4967 6695.


Casual Employee Decision and Annual Leave Entitlements

When our Principal Consultant, Stacey Kelly, was travelling around Central West NSW last week speaking with clients, this decision was at the forefront of each discussion!  So let’s get into it:


What do I need to know?

In 2016, a single member of the Fair Work Commission found that an employee of Labour Hire firm, WorkPac Pty Ltd was not a ‘true casual’, but rather a permanent employee and therefore entitled to leave entitlements (in this case, Annual Leave).   Why did he come to this decision?

Judge Jarrett found that the work undertaken by the employee was on a ‘regularly predictable’ work pattern and that the Labour Hire firm’s ‘all in flat rate’ for the employee didn’t clearly provide for a casual loading, in lieu of leave entitlements being payable.  The employee worked on a mine site, as a fly-in, fly-out worker for approximately 2 years (2010 to 2012), working 12.5 hour shifts in a ‘7-days-on, 7-days-off continuous roster arrangement’, notified to the employee in advance by a roster.  The worker could not choose the shifts he could work, or hours offered to him.

As such, Judge Jarrett found that the employee was entitled to payment for accrued annual leave on termination of his employment, in accordance with the National Employment Standard (NES). This equated to $21,000 in compensation and interest of $6,700.

This month, the Full Bench of the Fair Work Commission agreed with Judge Jarrett and dismissed the appeal by WorkPac.

What do I need to do?

We strongly encourage all employers to regularly undertake reviews of their HR documents and systems.  This includes:

  1. Regularly review the nature of your employment of casual employees (ie. at least 6 monthly) to understand whether they are continuing to be ‘true casuals’ or are, by the nature of the regular and systematic rostering of their work, actually a permanent employee;
  2. When rostering casual employees, minimise the regularity and predictability of rostered shifts, whenever you can.  We appreciate that this means balancing the potential needs of your employees for predictable rosters, and minimising your legal risk.  Chat to us about the best way to do this;
  3. Review your contracts of employment for casual employees to ensure that any hourly rate included in the contract very clearly and expressly includes reference to the hourly rate being inclusive of the relevant casual loading, as per the relevant Award; and
  4. Ensure that your casual hourly rates are at or above the Award minimum.  Remember that these are increased from 1 July each year, by the Fair Work Commission, so these need to be checked at least annually.  You can find the current Award minimum rates for casual employees in the relevant Award Pay Guide on the Fair Work Ombudsman website.

Feel free to reach out if you would like some support in understanding the impact of this decision and how you can minimise your risks with casual employees.

You can contact us at yourteam@seedpeopleconsulting.com.au or call us on 02 4967 6695.

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