[2015] FWCFB 5585
The attached document replaces the document previously issued with the above code on 22
October 2015.
The appearance list has been updated.
Associate to Vice President Hatcher
Dated 23 October 2015
1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Family and domestic violence clause
(AM2015/1)
Family friendly work arrangements clause
(AM2015/2)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SPENCER SYDNEY, 22 OCTOBER 2015
4 yearly review of modern awards – preliminary and jurisdictional issues.
Introduction and background
[1] In a conference on 29 September 2014, as part of the 4 yearly review of modern
awards being conducted pursuant to s.156 of the Fair Work Act 2009 (FW Act) the Australian
Council of Trade Unions (ACTU) identified two clauses that it sought to include in all 122
modern awards. The first was a domestic violence clause that would provide an employee
experiencing family and domestic violence with 10 days per year of paid leave. The second
was a family friendly work clause that relates to parental and antenatal leave. A number of
employer parties opposed the issues being dealt with as common issues and the Australian
Chamber of Commerce (ACCI) and the Australian Industry Group (Ai Group) submitted that
any jurisdictional objections to the ACTU claims should be dealt with as threshold matters
prior to hearing the substantive claims.
[2] In a Statement issued by the President of the Commission on 1 December 2014, it was
determined that the ACTU claims would be dealt with as a common issue and any
preliminary and jurisdictional issues would be considered prior to commencing substantive
merit proceedings.1 The ACTU, ACCI and Ai Group were directed to submit draft consent
directions including a description of the preliminary and jurisdictional issues to be decided.
Agreed draft directions were filed by Ai Group and ACCI on 13 February 2015 identifying
four preliminary jurisdictional issues as follows:
1. Are any elements of the claims of the ACTU or individual unions inconsistent with
Part 2-1 or Part 2-2 of the Fair Work Act 2009?
1 [2014] FWC 8583 at [29]
[2015] FWCFB 5585
DECISION
E AUSTRALIA FairWork Commission
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2. Do any elements of the claims of the ACTU or individual unions require terms that
are not permitted to be included in a modern award under Part 2-3 of the Fair Work
Act 2009?
3. Are any elements of the claims of the ACTU or individual unions inconsistent with
Part 6-2 of the Fair Work Act 2009?
4. Do any elements of the claims of the ACTU or individual unions purport to give the
Commission powers which it does not have under the Fair Work Act 2009?
[3] On 13 February 2015 the ACTU submitted drafts of the Family and Domestic
Violence clause and the Family Friendly Work Arrangements clause which it claimed, and
confirmed its position by filing draft determinations reflecting its claim on 2 March 2015. Ai
Group, ACCI, the Housing Industry Association (HIA) and the National Farmers’ Federation
(NFF) (collectively “employer parties”) subsequently filed submissions addressing the
identified preliminary jurisdictional issues. It is important to note that at this stage of the
matter the employer parties’ jurisdictional objections went to substantial portions of the
Family and Domestic Violence clause and the entirety of the Family Friendly Work
Arrangements clause.
[4] In response to these objections, the ACTU filed a submission on 15 June 2015 which
attached an amended claim in response to the jurisdictional objections of the employer parties.
The ACTU’s amended claim for a Family and Domestic Violence Leave clause was as
follows:
“FAMILY AND DOMESTIC VIOLENCE LEAVE
X.1 Definition
For the purpose of this clause, family and domestic violence is defined as any violent,
threatening or other abusive behaviour by a person against a member of the person's
family or household (current or former).
X.2 Family and Domestic Violence Leave
X.2.1 An employee, including a casual employee, experiencing family and
domestic violence is entitled to 10 days per year of paid family and domestic
violence leave for the purpose of:
(a) attending legal proceedings, counselling, appointments with a
medical or legal practitioner;
(b) relocation or making other safety arrangements; or
(c) other activities associated with the experience of family and
domestic violence.
X.2.2 Upon exhaustion of the leave entitlements in clauses X.2.1, employees
will be entitled to up to 2 days unpaid family and domestic violence leave on
each occasion.
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X.3 Notice and Evidentiary Requirements
X.3.1 The employee shall give his or her employer notice as soon as
reasonably practicable of their request to take leave under this clause.
X.3.2 If required by the employer, the employee must provide evidence that
would satisfy a reasonable person that the leave is for the purpose as set out in
clause X.2.1. Such evidence may include a document issued by the police
service, a court, a doctor (including a medical certificate), district nurse,
maternal and child health care nurse, a family violence support service, a
lawyer or a statutory declaration.
X.3.3 The employer must take all reasonable measures to ensure that any
personal information provided by the employee to the employer concerning an
employee’s experience of family and domestic violence is kept confidential.”
[5] The ACTU no longer claimed a Family Friendly Work Arrangements clause; its
amended claim instead contained a proposed Parental Leave Clause as follows:
“PARENTAL LEAVE
X.1 Return to work part-time or on reduced hours
X.1.1 Subject to this clause, on ending parental leave, an employee who is the
primary carer of the child is entitled to return to:
(a) the employee’s pre-parental leave position on a part-time basis; or
(b) if the employee’s pre-parental leave position is part-time, on
reduced hours; or
(c) if the employee’s pre-parental leave no longer exists – an available
position for which the employee is qualified and suited nearest in status
and pay to the pre-parental leave position on a part-time basis or on
reduced hours.
X.1.2 An employee who returns to work part-time or on reduced hours may
continue to work part-time or on reduced hours for a period not exceeding two
years from the date of birth or placement of the child (the nominated period).
X.1.3 At the end of the nominated period the employee has the right to return
to their pre-parental leave position, or at such other time before the end of the
nominated period by agreement.
X.2 Antenatal leave
X.2.1 An employee shall be entitled to 15.2 hours paid antenatal leave per year
for the purpose of attending appointments associated with:
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(a) antenatal;
(b) fertility treatment;
(c) surrogacy;
(d) pre-adoption; or
(e) permanent care orders.
X.2.2 The employee shall give his or her employer notice of the taking of the
leave under this clause, and if required by the employer, evidence that would
satisfy a reasonable person that the leave was for the reason as set out in X.2.1.
X.2.3 For the purpose of clause X.2.1(a), an employee includes an employee
who is the spouse or de facto partner.”
[6] The ACTU’s amended claim had the effect of removing to a substantial degree the
employer parties’ jurisdictional objections. At the hearing on 13 August 2015 it became clear
that the only remaining jurisdictional objections were to clause X.3.3 of the Family and
Domestic Violence Leave clause and clause X.1 of the Parental Leave clause.
FW Act provisions concerning permissible modern award terms
[7] Section 136 of the FW Act identifies terms that may, and must not, be included in
modern awards as follows:
136 What can be included in modern awards
Terms that may or must be included
(1) A modern award must only include terms that are permitted or required by:
(a) Subdivision B (which deals with terms that may be included in modern
awards); or
(b) Subdivision C (which deals with terms that must be included in modern
awards); or
(c) section 55 (which deals with interaction between the National Employment
Standards and a modern award or enterprise agreement); or
(d) Part 2-2 (which deals with the National Employment Standards).
Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to,
or that supplement, the National Employment Standards.
Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about
particular matters.
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Terms that must not be included
(2) A modern award must not include terms that contravene:
(a) Subdivision D (which deals with terms that must not be included in modern
awards); or
(b) section 55 (which deals with the interaction between the National
Employment Standards and a modern award or enterprise agreement).
Note: The provisions referred to in subsection (2) limit the terms that can be included
in modern awards under the provisions referred to in subsection (1).
[8] Section 137 provides that “A term of a modern award has no effect to the extent that it
contravenes section 136”.
[9] Section 139, which falls within Subdivision B of Division 3 of Part 2-3 (that is, the
subdivision referred to in s.136(1)(a)) provides:
139 Terms that may be included in modern awards—general
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees
with a disability and employees to whom training arrangements apply), and:
(i) skill-based classifications and career structures; and
(ii) incentive-based payments, piece rates and bonuses;
(b) type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work, and the facilitation of flexible
working arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work,
rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(f) annualised wage arrangements that:
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(i) have regard to the patterns of work in an occupation, industry or
enterprise; and
(ii) provide an alternative to the separate payment of wages and other
monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees
are not disadvantaged;
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of
pay;
(iii) disabilities associated with the performance of particular tasks or
work in particular conditions or locations;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
(2) Any allowance included in a modern award must be separately and clearly
identified in the award.
[10] Section 142, which also falls within Subdivision B, provides:
142 Incidental and machinery terms
Incidental terms
(1) A modern award may include terms that are:
(a) incidental to a term that is permitted or required to be in the modern award;
and
(b) essential for the purpose of making a particular term operate in a practical
way.
Machinery terms
(2) A modern award may include machinery terms, including formal matters (such as a
title, date or table of contents).
[11] Section 55 deals with the interaction between the National Employment Standards
(NES) and modern awards (as well as enterprise agreements) and, relevantly, provides as
follows:
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55 Interaction between the National Employment Standards and a modern award
or enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National
Employment Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2-2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or
agreement is expressly permitted to include:
(a) by a provision of Part 2-2 (which deals with the National Employment
Standards); or
(b) by regulations made for the purposes of section 127.
Note: In determining what is permitted to be included in a modern award or enterprise
agreement by a provision referred to in paragraph (a), any regulations made for the
purpose of section 127 that expressly prohibit certain terms must be taken into
account.
(3) The National Employment Standards have effect subject to terms included in a
modern award or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging
arrangements).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement may also include the following kinds of
terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an
employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in
any respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example)
terms:
(a) under which, instead of taking paid annual leave at the rate of pay required
by section 90, an employee may take twice as much leave at half that rate of
pay; or
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(b) that specify when payment under section 90 for paid annual leave must be
made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is
entitled beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual
leave or paid/personal carer’s leave at a rate of pay that is higher than the
employee’s base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for
example) terms requiring an employee to give more notice of the taking of unpaid
parental leave than is required by section 74.
…
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted
by subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this
section (see section 56). An enterprise agreement that includes a term that contravenes
this section must not be approved (see section 186) and a term of an enterprise
agreement has no effect to the extent that it contravenes this section (see section 56).
[12] As stated in the note to s.55(7), s.56 provides that “A term of a modern award or
enterprise agreement has no effect to the extent that it contravenes section 55”.
[13] Section 65, which is a NES provision, provides a right for an employee to request
flexible working arrangements in a number of circumstances including where the employee is
the parent of, or has the responsibility for the care of, a child who is of school age or younger.
As relevant to this matter, it provides:
65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an
employee; and
(b) the employee would like to change his or her working arrangements
because of those circumstances;
then the employee may request the employer for a change in working
arrangements relating to those circumstances.
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Note: Examples of changes in working arrangements include changes in hours of
work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has responsibility for the care, of a child who is of
school age or younger;
…
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of
the child;
may request to work part-time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a casual employee—the employee has
completed at least 12 months of continuous service with the employer
immediately before making the request; or
(b) for a casual employee—the employee:
(i) is a long term casual employee of the employer immediately before
making the request; and
(ii) has a reasonable expectation of continuing employment by the
employer on a regular and systematic basis.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
Agreeing to the request
(4) The employer must give the employee a written response to the request within 21
days, stating whether the employer grants or refuses the request.
(5) The employer may refuse the request only on reasonable business grounds.
(5A) Without limiting what are reasonable business grounds for the purposes of
subsection (5), reasonable business grounds include the following:
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(a) that the new working arrangements requested by the employee would be too
costly for the employer;
(b) that there is no capacity to change the working arrangements of other
employees to accommodate the new working arrangements requested by the
employee;
(c) that it would be impractical to change the working arrangements of other
employees, or recruit new employees, to accommodate the new working
arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be
likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be
likely to have a significant negative impact on customer service.
(6) If the employer refuses the request, the written response under subsection (4) must
include details of the reasons for the refusal.
[14] Section 84, which is also a NES provision, provides for a return to work guarantee for
an employee returning to work from unpaid parental leave in the following terms:
84 Return to work guarantee
On ending unpaid parental leave, an employee is entitled to return to:
(a) the employee’s pre-parental leave position; or
(b) if that position no longer exists—an available position for which the employee is
qualified and suited nearest in status and pay to the pre-parental leave position.
Submissions
Employer parties’ submissions
[15] In response to the ACTU’s amended claim, the employer parties (primarily ACCI and
Ai Group) made submissions which substantially overlapped and made a number of common
points. In relation to the Family and Domestic Violence clause, it was submitted that clause
X.3.3, which deals with confidentiality, is not “about” a matter in s.139(1) and is not an
incidental or machinery term as permitted by s.142, and therefore cannot be included in a
modern award. In relation to the Parental Leave clause it was submitted that clause X.1 would
operate to exclude s.65 in that it negated the “right” of an employer under s.65(5) to refuse, on
reasonable business grounds, a request by an employee with parental responsibilities for
altered working arrangements. The consequence of this was that the proposed provision
offended s.55(1), and therefore was not permitted under s.136(2)(b) to be included in any
modern award. The Full Bench NES Inconsistencies decision2, in which it was stated that an
2 4 yearly review of modern awards—Alleged NES Inconsistencies [2015] FWCFB 3023
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award provision which “negated the effect” of a NES provision contravened s.55(1), was cited
in support of the submission.3 It was further submitted that clause X.1 could not be
characterised as one that was ancillary or incidental to s.84 or supplemented it and was thus
permissible under s.55(4). In particular it did not supplement s.84 because it did not add
anything to complete it or apply it in a different way; clause X.1 was simply a new “stand
alone” entitlement. A provision which operated to exclude the NES - as clause X.1 did with
respect to s.65 - could not in any event be an incidental, ancillary or supplementary provision
authorised by s.55(4).4 In addition, clause X.1 could cause detriment to employees compared
to the NES in certain postulated circumstances, which was submitted to be a further reason
why it was not permissible under s.55(4).
ACTU submissions
[16] The ACTU submitted that clause X.3.3 of the Family and Domestic Violence Leave
clause was a term that might be included in a modern award pursuant to s.142 of the FW Act
because it was incidental to the entitlement in clause X.2 and is essential for the purpose of
making the leave entitlement operate in a practical way. In relation to the Parental Leave
clause, the ACTU submitted that clause X.1 was an award term permitted by s.139(1)(b), in
that it concerned regular part-time employment and the facilitation of flexible working
arrangement for employees with family responsibilities, and s.139(1)(h), in that it concerned
leave and arrangements for taking leave. Clause X.1 was supplementary to s.84 and thus
permissible under s.55(4), because it added an additional return to work right to an employee
at the end of a period of unpaid parental leave. The proposed clause did not exclude any
employer “right” in s.65(5), because it did not in terms operate with respect to an employee
“request” for alternative working arrangements, and left s.65(5) with work to do with respect
to any such request. In any event, the NES consisted of a set of minimum employment rights
for employees, and to the extent that clause X.1 would give employees a superior right to that
in s.65 by removing the capacity of the employer to refuse an employee request on reasonable
business grounds, that did not constitute an exclusion of a NES provision. Alternatively, as
long as clause X.1 could be characterised as supplementary to s.84, and was therefore
permissible under s.55(4), the effect of s.55(7) was that it did not contravene s.55(1), which
meant that it was not necessary to determine whether it excluded s.65.
Consideration
[17] There are circumstances where it may be convenient for a court or statutory tribunal to
consider applications to strike out claims prior to the final hearing of the matter and before
any evidence is received. However the power to do so will only be employed where it is clear
that the claim is manifestly groundless and incapable of success. In General Steel Industries
Inc v Commissioner for Railways (NSW)5 Barwick CJ considered the test to be applied in
determining whether to exercise powers of summary dismissal:
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is
to be sparingly employed and is not to be used except in a clear case where the Court
is satisfied that it has the requisite material and the necessary assistance from the
3 Ibid at [37]
4 Ibid at [37]
5 [1964] HCA 69; (1964) 112 CLR 125 at 128-9
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parties to reach a definite and certain conclusion. I have examined the case law on the
subject, to some of which I was referred in argument and to which I append a list of
references. There is no need for me to discuss in any detail the various decisions, some
of which were given in cases in which the inherent jurisdiction of a court was invoked
and others in cases in which counterpart rules to Order 26, r. 18, were the suggested
source of authority to deal summarily with the claim in question. It is sufficient for me
to say that these cases uniformly adhere to the view that the plaintiff ought not to be
denied access to the customary tribunal which deals with actions of the kind he brings,
unless his lack of a cause of action - if that be the ground on which the court is invited,
as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.
The test to be applied has been variously expressed; "so obviously untenable that it
cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does
not admit of argument"; "discloses a case which the Court is satisfied cannot succeed";
"under no possibility can there be a good cause of action"; "be manifest that to allow
them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and
obvious that the court can say at once that the statement of claim, even if proved,
cannot succeed; or "so manifest on the view of the pleadings, merely reading through
them, that it is a case that does not admit of reasonable argument"; "so to speak
apparent at a glance".”
[18] Where a claim is sought to be struck out on jurisdictional grounds, it must be
demonstrated that the existence of jurisdiction to grant the claim is inarguable and that there is
no order that could be made in favour of the applicant which would be within jurisdiction. In
the NSW Court of Appeal decision in Majik Markets Pty Ltd v Brake and Service Centre
Drummoyne Pty Ltd6 Kirby P (as he then was) said:
“When the claimants’ objections of principle to the jurisdiction of the Commission
were raised before a single member (Hungerford J) they were referred to, and
determined by, the Court Session… Such a course is often a sensible one where a
party has a substantial threshold argument which, if it succeeds, will knock out the
claim and save the costs and inconvenience that attend a protracted hearing of
proceedings on the merits. But, as with any threshold relief of this kind, it must be
conserved to a clear case where it is plain that the invocation of the jurisdiction
impugned is wholly misconceived or, upon analysis, lacks an arguable legal
foundation. Necessarily, refusal of relief at the threshold will not finally determine that
jurisdiction exists for any order which the Commission might make between the
parties. This is because, to secure relief, the claimants must demonstrate that no order
could be made which would be within jurisdiction. This burden, which is a heavy one,
was accepted by the claimants.”
[19] As earlier stated, the employer parties do not contend that the whole of the amended
ACTU claim should be struck out. Nor do they contend that there is no modern award
provision which the Commission can make dealing with the subject matters of the ACTU
claim, namely domestic violence leave, antenatal leave and a return to work from parental
leave of part-time or reduced hours. Accordingly the determination of the employer parties’
6 (1991) 28 NSWLR 443 at 446-7; (1991) 39 IR 169 at 170-1
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jurisdictional objections to discrete aspects of the amended ACTU will not avoid the need to
conduct a final hearing in respect of the ACTU claim. There is no suggestion here of the
Commission proceeding to a hearing which it has no authority to conduct. The ACTU would
not be prevented by any decision we might make at this juncture from further amending its
claim to overcome any jurisdictional difficulties which might be identified by us in a
preliminary decision. Nor would the Commission be prevented, after hearing the evidence and
submissions at the final hearing of the matter, from granting modern award provisions
different in form to those claimed by the ACTU if it is considered such provisions are
consistent with the modern awards objective in s.134 of the FW Act and the Commission has
the requisite power under the FW Act (subject, of course, to the parties being afforded
procedural fairness). That is because the Commission, in the exercise of its modern award-
making functions, is obliged to act within the scope of its statutory powers and to discharge
its statutory obligations but is not confined by the terms of an application made by a particular
party as if it were a pleading before a court.
[20] These matters by themselves indicate that the determination of the employer parties’
jurisdictional objections at this preliminary stage would be premature. In addition however,
we are not satisfied that the employer parties have discharged the “heavy burden” of
demonstrating that even the discrete aspects of the amended ACTU claim which they have
challenged are, in jurisdictional terms, without legal foundation.
[21] Without hearing the evidence, we would not be prepared to conclude that clause X.3.3
of the proposed Family and Domestic Violence Leave clause is beyond jurisdiction. It was
accepted by the employer parties that the substantive provisions of the Family and Domestic
Violence Leave clause, which would establish an entitlement to 10 days per year domestic
and violence leave to be taken for specific identified purposes, were authorised by s.139(1)(h)
as terms which could be included in a modern award because they were about “leave”. We
consider that if there was evidence demonstrating that the confidentiality requirement in
clause X.3.3 was necessary in order for the proposed leave entitlement to operate effectively
(for example because without confidentiality employees might not be prepared to disclose
anything about domestic violence incidents and thus would not be able to access the
entitlement), it would be reasonably arguable that clause X.3.3 was authorised by s.139(1)(h)
as a term which was about “leave” or “arrangements for taking leave” and/or by s.142(1) as
“incidental to a term that is permitted … to be in the modern award” and “essential for the
purpose of making a particular term operate in a practical way”.
[22] The employer parties’ challenge to the jurisdictional foundation for clause X.1 of the
ACTU’s proposed Parental Leave clause was, we acknowledge, a substantial one. However
we are likewise not satisfied at this preliminary juncture, without having heard any evidence,
that clause X.1 is clearly beyond power. Firstly, we consider that it is well arguable that the
clause is authorised by s.139(1)(b) as a term which is about “regular part-time employment …
and the facilitation of flexible working arrangements, particularly for employees with family
responsibilities”.
[23] Secondly, we consider that it is reasonably arguable that clause X.1 is supplementary
to the right in s.84, in that it builds upon the employee’s right to return to work after taking
parental leave to the employee’s pre-parental leave position or another available position for
which the employee is qualified and suited and which is nearest in status and pay to the pre-
parental leave position by adding a right to return to such a position on part-time hours or
reduced hours. We are not persuaded at this point that the proposed clause would be
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detrimental to employees when compared with the NES in any respect, with the result that we
consider that it is reasonably arguable that the clause is authorised by s.55(4).
[24] Thirdly, we consider that it is reasonably arguable that the effect of s.55(7) is that a
modern award term which, under s.55(4), is supplementary to a NES provision and does not
result in any detriment to an employee when compared to the NES as a whole, does not
contravene s.55(1) even if it excludes some other provision of the NES. If so, clause X.1
would be a permissible modern award term even if it excludes s.65(5).
[25] Finally and in any event, we consider that the evidence may potentially bear upon the
question of whether clause X.1 would, in practical terms, operate to exclude s.65(5). For
example, the evidence may demonstrate the extent to which employees returning from
parental leave, who would be in a position to take advantage of the proposed right in clause
X.1, currently make requests for alternative working arrangements of the type contemplated
by clause X.1 and thus are subject to the employer’s right to refuse the request on reasonable
business grounds. Arguably, any such evidence might go to whether clause X.1 in its
operation would result in an outcome whereby s.65(5) was negated.
Conclusion
[26] Because we are not satisfied that the impugned aspects of the ACTU’s amended claim
lack an arguable legal foundation, we are not prepared at this stage of the proceedings and
without having heard any evidence to strike out those parts of the ACTU’s amended claim.
The matter will proceed to a final hearing before a Full Bench of this Commission. We
emphasise that in reaching this conclusion we have not formed any final view about the
employer parties’ jurisdictional objections. Nor of course is anything we have stated in the
decision to be taken as indicating any view about the merits of the ACTU’s amended claim -
in particular whether it would meet the modern awards objective in s.134(1).
VICE PRESIDENT
Appearances:
N. Ward for the Australian Chamber of Commerce and Industry, New South Wales
Business Chamber Limited, Australian Business Industrial, Australian Hotels
Association, National Retail Association, Business SA, Chamber of Commerce and
Industry Western Australia and Master Builders Australia.
S. Smith for the Australian Industry Group.
M. Adler for the Housing Industry Association.
O. Valaire for the Master Plumbers Association.
OF THE FAIR WORK MISSION THE
[2015] FWCFB 5585
15
L. Svendsen for the Health Services Union.
S. Maxwell for the Construction, Forestry, Mining and Energy Union.
F. Knowles of counsel with G. Starr for the Australian Council of Trade Union and the
Textile, Clothing and Footwear Union of Australia.
M. Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.
J. O’Dwyer for the Electrical Communications Association Queensland, Industrial
Union of Employers.
Hearing details:
2015.
Sydney:
13 August.
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