1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Family & Domestic Violence Leave
Clause
(AM2015/1)
DEPUTY PRESIDENT GOOLEY
COMMISSIONER SPENCER
MELBOURNE, 3 JULY 2017
4 yearly review of modern awards – Family & Domestic Violence Leave Clause.
The claim
[1] The Australian Council of Trade Unions (ACTU) has made a claim as part of the 4
yearly review of modern awards to include in all modern awards an entitlement for employees
to take family and domestic violence leave.
[2] The ACTU claim defines family and domestic violence leave as follows:
“Family and domestic violence is any violent, threatening or other abusive behaviour by
a person against a current or former partner or member of the person’s family or
household.”
[3] The ACTU claim seeks family and domestic violence leave be included in all modern
awards. A copy of the draft claim can be found at Annexure A to this decision.
[4] The effect of the ACTU’s claim would be to provide all employees with a right to ten
days paid family and domestic violence leave per year which does not accumulate and, if the
leave is exhausted, up to two days of unpaid family and domestic violence leave on each
occasion. The leave is for the “purpose of attending to activities related to the experience of
being subjected to family and domestic violence.” The clause also deals with notice and
evidentiary requirements.
The Full Bench’s task
[5] The task before the Full Bench is to determine if it is necessary for the purpose of
ensuring that modern awards, together with the NES, provide a fair and relevant minimum
safety net to include in all modern awards, an entitlement for employees to take family and
domestic violence leave.
[6] We have formed the preliminary view that it is necessary to make provision for family
and domestic violence leave but for reasons explained in this decision, have decided to
[2017] FWCFB 3494
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3494
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dismiss the ACTU’s application because we are not satisfied, at this time, that it is necessary
to provide ten days paid family and domestic violence leave to all employees covered by
modern awards. We have however, formed the preliminary view that all employees should
have access to unpaid family and domestic violence leave and in addition we have formed the
preliminary view that employees should be able to access personal/carer’s leave for the
purpose of taking family and domestic violence leave. We note that the parties have not had
an opportunity to make submissions or call evidence on these matters and we intend to
provide the parties with such an opportunity prior to finalising our decision.
[7] These are our reasons for dismissing the ACTU’s claim.
The legislative framework - Variations to the modern award and the modern awards
objective (MAO)
[8] Section 156 of the Fair Work Act 2009 (the Act) requires the Commission conduct a 4
yearly review of modern awards. Pursuant to s.134 of the Act:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient
and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable
value; and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards; and
(h) the likely impact of any exercise of modern award powers on
employment growth, inflation and the sustainability, performance and
competitiveness of the national economy.
This is the modern awards objective.
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When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the
FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to
modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other
applicable provisions. For example, if the FWC is setting, varying or revoking modern
award minimum wages, the minimum wages objective also applies (see section 284).”
[9] The Full Bench in the 4 Yearly Review of Modern Awards – Fire Fighting Industry
Award 20101 stated that the word “relevant” in s.134(1) of the Act “is intended to convey that
a modern award should be suited to contemporary circumstances.”2
[10] In setting the framework for the four yearly review, the Full Bench in its decision
dealing with Preliminary Jurisdictional Issues3 said as follows:
“[23] The Commission is obliged to ensure that modern awards, together with the NES,
provide a fair and relevant minimum safety net taking into account, among other
things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a
‘stable’ modern award system suggests that a party seeking to vary a modern award in
the context of the Review must advance a merit argument in support of the proposed
variation. The extent of such an argument will depend on the circumstances. We agree
with ABI’s submission that some proposed changes may be self-evident and can be
determined with little formality. However, where a significant change is proposed it
must be supported by a submission which addresses the relevant legislative provisions
and be accompanied by probative evidence properly directed to demonstrating the facts
supporting the proposed variation.
[24] In conducting the Review the Commission will also have regard to the historical
context applicable to each modern award. Awards made as a result of the award
modernisation process conducted by the former Australian Industrial Relations
Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth)
were deemed to be modern awards for the purposes of the FW Act (see Item 4 of
Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at
the time they were made the modern awards now being reviewed were consistent with
the modern awards objective. The considerations specified in the legislative test
applied by the AIRC in the Part 10A process is, in a number of important respects,
identical or similar to the modern awards objective in s.134 of the FW Act. In the
1 [2016] FWCFB 8025.
2 Ibid at [29].
3 4 Yearly Review of Modern Awards – Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [23] – [27].
https://www.fwc.gov.au/decisionssigned/html/2014fwcfb1788.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8025.htm
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Review the Commission will proceed on the basis that prima facie the modern award
being reviewed achieved the modern awards objective at the time that it was made.
[25] Although the Commission is not bound by principles of stare decisis it has
generally followed previous Full Bench decisions. In another context three members
of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it
should do so cautiously and only when compelled to the conclusion that the
earlier decision is wrong. The occasion upon which the departure from
previous authority is warranted are infrequent and exceptional and pose no real
threat to the doctrine of precedent and the predictability of the law: see
Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et
seq.”
[26] While the Commission is not a court, the public interest considerations
underlying these observations have been applied with similar, if not equal, force to
appeal proceedings in the Commission. As a Full Bench of the Australian Industrial
Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel)
(Cetin):
“Although the Commission is not, as a non-judicial body, bound by principles of
stare decisis, as a matter of policy and sound administration it has generally
followed previous Full Bench decisions relating to the issue to be determined,
in the absence of cogent reasons for not doing so.”
[27] These policy considerations tell strongly against the proposition that the Review
should proceed in isolation unencumbered by previous Commission decisions. In
conducting the Review it is appropriate that the Commission take into account
previous decisions relevant to any contested issue. The particular context in which
those decisions were made will also need to be considered. Previous Full Bench
decisions should generally be followed, in the absence of cogent reasons for not doing
so.” (references omitted).
[11] As noted by the Full Bench in the 4 Yearly Review of Modern Awards – Fire Fighting
Industry Award 20104, the Commission is not constrained by the terms of the application. It is
important to note that the Review is different to inter partes proceedings. The Commission is
obliged to review all modern awards and each modern award must be reviewed in its own
right. The Commission may vary a modern award in whatever terms it considers appropriate.
Of course the views of interested parties need to be taken into account prior to making any
variation.
[12] Section 138 of the Act emphasises the importance of the modern awards objective in
these terms:
4 [2016] FWCFB 8025 at [21].
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8025.htm
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“A modern award may include terms that it is permitted to include, and must include
terms that it is required to include, only to the extent necessary to achieve the modern
awards objective and (to the extent applicable) the minimum wages objective.”
[13] In its Preliminary decision5 the Full Bench said:
“[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a
modern award ... is necessary to achieve the modern awards objective’ (emphasis
added). In Shop, Distributive and Allied Employees Association v National Retail
Association (No 2) (SDA v NRA (No 2)) Tracey J considered the proper construction
of s.157(1). His Honour held:
“The statutory foundation for the exercise of FWA’s power to vary modern
awards is to be found in s 157(1) of the Act. The power is discretionary in
nature. Its exercise is conditioned upon FWA being satisfied that the variation
is “necessary” in order “to achieve the modern awards objective”. That
objective is very broadly expressed: FWA must “provide a fair and relevant
minimum safety net of terms and conditions” which govern employment in
various industries. In determining appropriate terms and conditions regard must
be had to matters such as the promotion of social inclusion through increased
workforce participation and the need to promote flexible working practices.
The subsection also introduced a temporal requirement. FWA must be satisfied
that it is necessary to vary the award at a time falling between the prescribed
periodic reviews.
The question under this ground then becomes whether there was material
before the Vice President upon which he could reasonably be satisfied that a
variation to the Award was necessary, at the time at which it was made, in
order to achieve the statutory objective . . .
In reaching my conclusion on this ground I have not overlooked the SDA’s
subsidiary contention that a distinction must be drawn between that which is
necessary and that which is desirable. That which is necessary must be done.
That which is desirable does not carry the same imperative for action. Whilst
this distinction may be accepted it must also be acknowledged that reasonable
minds may differ as to whether particular action is necessary or merely
desirable. It was open to the Vice President to form the opinion that a variation
was necessary.”
[39] We are satisfied that s.138 is relevant to the Review. We also accept that the
observations of Tracey J in SDA v NRA (No.2), as to the distinction between that
which is “necessary” and that which is merely desirable, albeit in a different context,
are apposite to any consideration of s.138.” (References omitted)
5 4 Yearly Review of Modern Awards – Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [38].
https://www.fwc.gov.au/decisionssigned/html/2014fwcfb1788.htm
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[14] Relevantly, for the purpose of this decision s.139 provides as follows:
“(1) A modern award may include terms about any of the following matters:
…
(h) leave, leave loadings and arrangements for taking leave;”
[15] The National Employment Standards (NES) deal with certain forms of leave namely
personal/carer’s leave, parental leave, compassionate leave, community service leave, and
long service leave. Section 55(4)(b) provides that a modern award may include terms which
supplement the NES.
[16] The notes give some guidance as to what is meant by supplementary terms:
“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.”
[17] It is clear that the Commission may include terms in a modern award that provide for
leave other than those currently provided in the NES as well as supplement the leave
provisions in the NES.
Consideration
[18] A summary of the evidence and extracts of the submissions of the parties, who
appeared at the hearing, was provided in the earlier decision.6 We do not intend to reproduce
that in this decision. A range of parties made submissions in support of and in opposition to
the ACTU’s application. Whilst we have not repeated those submissions in this decision, we
have had regard to all of those in our deliberations.
[19] It was submitted that the Commission should not include family and domestic violence
leave in modern awards for a number of reasons apart from the merits of the claim.
6 4 yearly review of modern awards—Family & Domestic Violence Leave Clause [2017] FWCFB 1133.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1133.htm
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Leave entitlements should be dealt with by legislation
[20] The Australian Industry Group (AIG) submitted that leave should be dealt with by
legislation not awards, as has occurred since 2006. AIG acknowledges that modern awards
contain some supplementary leave provisions which, for example require a higher rate of pay
for annual leave; contain unpaid ceremonial leave; or contain dispute resolution procedure
training leave.7
[21] The AIG submitted that this is the first time the Commission has been asked to
consider the imposition of a new form of leave for all award covered employees. This is the
role of Parliament not the Commission. AIG acknowledges that awards may include terms
about leave loadings and arrangements for taking leave but submit that that does not make it
appropriate for all awards to contain a new universal leave entitlement.8
[22] We do not accept this submission. Had Parliament intended that all leave was to be
dealt with by the NES, it could have made this clear in the legislation but it did not. Section
139(1)(h) expressly provides that modern awards may include terms about leave.
Additionally, s.55(4)(b) permits modern awards to include terms that supplement the NES.
There is nothing in the Explanatory Memoranda or Parliamentary speeches would support the
contention that Parliament intended that all leave matters be determined by it. Further no
submissions were made to the Full Bench by the Government to that effect.
Parliament has already addressed family and domestic violence and did not include
leave provisions.
[23] The AIG submitted that the Legislature has elected not to provide for family and
domestic violence leave notwithstanding its understanding of the issue. For example, the
Parliament amended9 s.65(1) of the Act to expressly deal with this issue. The Commission
should not supplant the Parliament by developing a further general leave entitlement.10
[24] The AIG submitted that had Parliament seen the need to create a special category of
leave to address family violence, it would have varied the NES to provide for this at this time.
To date no political party has introduced a Bill to provide for family and domestic violence
leave although it should be noted that in the lead up to the last election the Australian Labor
Party announced that if it won government, it would provide for five days paid family and
domestic leave for full-time employees and five days of unpaid leave for casuals.11
[25] We were advised by the Victorian Government that this issue would be considered by
the Council of Australian Governments (COAG) at its December meeting. The COAG
communique for the December meeting stated as follows:
7 Final Submissions of the Australian Industry Group dated 28 November 2016 at [427].
8 Ibid at [423] – [433].
9 Fair Work Amendment Act 2013 s.3 and Sch 1 item 17.
10 Final Submissions of the Australian Industry Group dated 28 November 2016 at [31].
11 Ibid at [377] – [379].
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“COAG noted the importance of encouraging employers to provide appropriate
workplace support to employees experiencing family violence. COAG noted that the
independent Fair Work Commission (FWC) is currently considering an application to
include an entitlement to ten days of paid domestic violence leave in all modern
awards and is expected to report in early 2017. COAG agreed that this issue will be
considered at the first COAG meeting following the FWC decision.”
[26] There is nothing in this communique that supports a finding that Australian
Governments take the view that the current provisions available to employees who have
experienced family and domestic violence are adequate or that the matter should be
determined by governments.
The AIRC award modernisation Full Bench decisions
[27] It was further submitted that we should adopt the approach of the AIRC award
modernisation Full Bench. The AIG submitted that the AIRC in the initial award
modernisation process gave consideration to what leave provisions should be included in
modern awards.12 In deciding to retain dispute resolution training leave in an award, the Full
Bench stated that it had decided to maintain dispute resolution training leave where it was a
prevailing industry standard.13
[28] The AIG submitted that family and domestic violence leave is not a prevailing
industry standard in any award.
[29] In rejecting proposals to include parental leave and jury leave entitlements in all
awards, the AIRC award modernisation Full Bench said that this would be the creation of a
new minimum standard rather than mere supplementation. In relation to community service
leave, the Full Bench said, “If we were to maintain an unlimited entitlement it would be
necessary to supplement the NES in every modern award. Such a course would be
inconsistent with the NES and tend to undermine it.”14
[30] The AIG noted that the AIRC award modernisation Full Bench decided not to include
“pressing domestic need leave” in the Black Coal Mining Industry Award 2010 on the basis
that such an entitlement was not appropriate in an award intended to provide a fair minimum
safety net of enforceable terms and conditions of employment for employees.15
[31] The AIRC award modernisation Full Bench in response to the ACTU submission that
it had taken an overly restrictive view when determining its power to supplement the terms of
the NES, said, “We think we should give proper weight to the Parliament’s decision to
regulate minimum standards in relation to matters covered by the NES. It cannot have been
Parliament’s intention that the Commission could make general provision for higher
standards. We accept, however, that there may be room for argument about what constitutes
supplementation in a particular case.”16
12 Ibid at [434] – [435].
13 Ibid at [436].
14 Ibid at [437] – [438].
15 Ibid [439].
16 Ibid at [447].
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[32] The AIRC declined to include “pressing necessity leave” in the Fire Fighting Industry
Award 2010 on the basis that the provision seemed, “excessive or inappropriate as part of a
minimum safety net”. The AIRC refused to include, “pressing necessity leave, special leave
and study leave provisions”, in the award.17
[33] The AIG submitted that we should not depart from this approach consistent with
previous authorities.18
[34] We do not accept this submission. The AIRC was tasked with modernising all federal
awards. That task occurred in the context of the Award Modernisation Request. Given the
Request and the time constraints placed on the AIRC, there was no considering of new
applications for additional entitlements. Importantly there was no application for the inclusion
of family and domestic violence leave in modern awards before the AIRC. While it is true that
employees experiencing family and domestic violence may have been able to apply for
pressing necessity leave, there is no evidence that this was argued before the AIRC. We note
that since the making of the modern awards there have been significant variations to some of
those awards including matters which were expressly considered and rejected by the AIRC
award modernisation Full Bench.
[35] The approach to earlier decisions was dealt with in the Preliminary decision as part of
the 4 yearly review. It recognised that previous Full Bench decisions should generally be
followed, in the absence of cogent reasons for not doing so.
[36] The application before us has not previously been considered by a Full Bench of the
Commission. It must be assessed on its merits having regard to the statutory requirements. To
the extent that the AIRC expressed the view at the time about the appropriateness of including
certain leave provisions in particular modern awards or about supplementing the NES, we do
not consider that it intended by those comments to make any rulings of general application.
So much is clear from the fact that some modern awards included terms dealing with dispute
resolution training leave and ceremonial leave.
[37] Our focus in this review must be the statutory framework and the case before the
Commission.
[38] As the Full Bench said in Re Security Services Industry Award 2010 recently
observed:
“[8] While this may be the first opportunity to seek significant changes to the terms of
modern awards, a substantive case for change is nevertheless required. The more
significant the change, in terms of impact or a lengthy history of particular award
provisions, the more detailed the case must be. Variations to awards have rarely been
made merely on the basis of bare requests or strongly contested submissions. In order
to found a case for an award variation it is usually necessary to advance detailed
evidence of the operation of the award, the impact of the current provisions on
employers and employees covered by it and the likely impact of the proposed changes.
17 Ibid at [448] – [452].
18 Ibid at [454].
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Such evidence should be combined with sound and balanced reasoning supporting a
change. Ultimately the Commission must assess the evidence and submissions against
the statutory tests set out above, principally whether the award provides a fair and
relevant minimum safety net of terms and conditions and whether the proposed
variations are necessary to achieve the modern awards objective. These tests
encompass many traditional merit considerations regarding proposed award
variations.”19
Existing Statutory Employment Protections and Entitlements
[39] The AIG submitted that the Act already provides substantial protections and
entitlements for employees who experience family and domestic violence which include:
The right to request flexible work arrangements;
Various types of paid leave;
Continuity of service where paid leave or unpaid leave is granted by the employer;
Protection against unfair dismissal;
Protection against adverse action;
Protection against unlawful termination.20
[40] Further the AIG submitted that workplace health and safety laws require employers to
address the risk caused by violent members of the employee’s family who may visit the
workplace.21
[41] The AIG submitted that regard should be had to these NES entitlements as modern
award should not be viewed in a vacuum.22
[42] We accept the AIG submission that the right to request flexible work arrangements
would be applicable to deal with some circumstances faced by employees who experience
family and domestic violence. However, we are not satisfied that that it is sufficient to meet
all the circumstances faced by employees who experience family and domestic violence.
[43] Employees who experience family and domestic violence often need to respond to
incidents on short notice. Section 65 of the Act requires the request for flexible working
arrangements to be in writing and the employer has 21 days to respond to the request. Further,
that request may be refused on reasonable business grounds. An employee needing to attend
court for the purpose of obtaining interim family court orders or interim apprehended violence
orders or who needs to find alternative accommodation cannot afford to wait 21 days to see if
her or his request for flexible working arrangements has been approved.
19 [2015] FWCFB 620 at [8].
20 Final Submissions of the Australian Industry Group dated 28 November 2016 at [366].
21 Ibid at [367].
22 Ibid at [369].
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb620.htm
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[44] We also accept that employees, other than casual employees, who experience family
and domestic violence, may be able to use personal/carer’s leave, annual leave or long service
leave to enable them to deal with the consequences of the violence. An employee who is unfit
for work because of either a physical or psychological injury can take personal leave.
However, an employee cannot take such leave to attend court or to find alternative
accommodation. Employees can use their annual leave for any purpose. However, an
employee can only take annual leave at a time agreed by the employer and, while an employer
may not unreasonably refuse to agree to such a request, we do not consider that there is
sufficient flexibility around the taking of annual leave for it to be of sufficient assistance for
employees facing the need for urgent leave. For the same reason we do not consider that being
able to take long service leave will necessarily meet the employee’s needs.
[45] While we accept that employees who experience family and domestic violence will
have some protection from unfair dismissal, unlawful dismissal and adverse action we do not
consider this to be sufficient. If employees have a right to family and domestic violence leave
then that would be a workplace right. Employees would gain an additional protection against
dismissal because an employee took family and domestic violence leave or proposed to take
family and domestic violence leave would be prohibited under the Act. Currently unless the
employee has such an entitlement under an enterprise agreement, the employee has no such
right unless their circumstances fit the current protections. For example, there is no
workplace right to be absent from work to attend court proceedings or to find alternative
accommodation.
[46] We are therefore, not satisfied that the existing entitlements meet the needs of
employees who experience family and domestic violence.
The merits of the ACTU’s claim
[47] We have reached the conclusion that the inclusion of the ACTU’s clause is not
necessary to meet the modern award objective.
[48] This is not to say we reject the ACTU’s submissions and the evidence called to
support those submissions that family and domestic violence is a workplace issue which
requires a workplace response.
[49] Further, we accept the evidence that family and domestic violence is a significant
problem and that its incidence has significant impacts on those who experience family and
domestic violence and their families. We further accept that family and domestic violence has
significant economic impacts both for the individual and the general community. We further
accept that whilst men can experience family and domestic violence, family and domestic
violence is a gendered phenomenon which means it disproportionally affects women.
[50] We do not accept the submissions23 that the impact on those employees who
experience family and domestic violence is no different to impact on employees who
experience other forms of violence. While it may be true that a person who experiences a
physical assault has the same physical injuries irrespective of the identity of the assailant we
23 Ibid at [45].
[2017] FWCFB 3494
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are satisfied that the relationship that the employee has to the assailant when the assailant is
an intimate partner or was a former intimate partner adds an extra complexity not found in
other assaults.
[51] While we also accept that there are other matters which might impact on employees in
a significant way24 we are satisfied that the evidence established that the circumstances faced
by employees who experience family and domestic violence require a special response.
[52] So much has been recognised by the Australian Government. In the National Plan to
Reduce Violence against Women and their Children it was said that there needed to be a
national plan because, “domestic violence and sexual assault are the most pervasive forms of
violence experienced by women in Australia, and require an immediate and focused
response.”25
[53] The Australian Law Reform Commission report on Family Violence and
Commonwealth Laws – Improving Legal Frameworks said:
“Family violence is not simply a private or individual issue, but rather a systematic one
arising from wider social, economic and cultural factors. Accordingly, effective
measures to address family violence need to operate in both the private and public
spheres.”26
[54] We accept in a holistic sense, the expert evidence advanced by the ACTU. Domestic
and other forms of violence have real and tangible impacts on employees and employers in
the workplace. It has been estimated that violence against women in particular costs the
national economy $21.7 billion per year.27 This includes the cost of delivering health services,
the loss of productivity on businesses and the increased demand on the criminal justice
system. This is notwithstanding the manifestly unquantifiable psychological impact that
family and domestic violence may have on victims, and the loss of life.
[55] It is accepted that the processes in dealing with family and domestic violence (such as
preparing for and attending court proceedings) are time consuming. In this regard, we refer to
our previous comments surrounding the inadequacies of the current leave provisions for
victims of family and domestic violence.
[56] The evidence before the Commission, demonstrates that the effects of domestic
violence are far reaching and extend beyond the individual. We accept that the effect on
victims’ families and the community at large cannot be understated. Further, we accept that
the problem must be addressed by the community, by confirming the issue as a community
matter, rejecting offending conduct and petitioning authorities, such as Parliament and, in this
case, the Commission. In that regard the ACTU is commended for the social utility of its
application.
24 Ibid at [50] – [64].
25 National Plan to Reduce Violence against Women and their Children at page 1.
26 Australian Law Reform Commission report on Family Violence and Commonwealth Laws at pages [36] – [37].
27 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [67].
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[57] We have had evidence of employers who have understood the significance of the
issue, and voluntarily implemented domestic violence leave provisions in response.
[58] We also accept that it has been difficult without a reporting mechanism or a defined
provision to capture the full impact of domestic violence on employees.
[59] However, we are not satisfied that the ACTU has made out a case for ten days paid
leave to all employees. We have also formed the view that the ACTU’s proposed definition is
too broad in scope and would be difficult to apply. Those conclusions however do not negate
the need for a protective unpaid provision.
10 days paid leave
[60] We accept the evidence that the provision of paid leave would assist employees who
experience family and domestic violence. It would obviously reduce the financial impact of
the consequences of the violence. We accept the evidence that employees who experience
family and domestic violence face financial difficulties as a result of the family and domestic
violence such as relocation costs or becoming a sole parent. Having to lose pay at the same
time because of the need to attend to the consequences of family and domestic violence would
add to the financial burden faced by these employees. We therefore, would have no difficulty
in concluding that the provision of paid leave would be a desirable outcome.
[61] Further we accept the evidence that employees who experience family and domestic
violence suffer economic harm as a result of disruption to workforce participation. However,
we are not satisfied that paid leave is necessary to overcome this disruption. Without the
availability of leave we accept that employees may see resignation as the only option.
However the provision of unpaid leave would mean that employees would not have to make
this choice.
[62] We note that where employers have introduced family and domestic violence leave,
either through enterprise bargaining or by policy, paid leave has been provided. Further, a
number of Australian governments have introduced paid domestic violence leave for their
own full time and part time employees and unpaid leave for casual employees, or in the case
of Queensland, for all employees within the scope of its industrial relations system. Such
decisions are to be applauded.
[63] We note that the number of days paid leave provided range from between 2 and 20
days paid family and domestic violence leave.
[64] Ms Ludo McFerran, who gave expert evidence on behalf of the ACTU, found the
following:
“The PWC estimate the cost to productivity may be high as to include higher leave rates
(7-10 days) than have been found in practice. A survey conducted by the Gendered
Violence Research Network (UNSW) in 2015 of 102 employees who had domestic
violence clauses in their enterprise agreement found that the average paid domestic
violence leave taken in the past 12 months was 43 hours, with a range of between 8-
202 hours. Per incident, where time off was requested, most employees took two –
three days or less off work. According to Telstra, the inclusion of 10 days paid
domestic violence leave in their Enterprise Agreement 2015-2018 has not opened the
[2017] FWCFB 3494
14
floodgates as 22 out of a workforce of 32,000 have accessed leave in six months taking
an average of 2.3 days.”28
[65] The ACTU has not provided a satisfactory explanation as to how it arrived at ten days
and the evidence does not support a finding that ten days paid leave is necessary.
[66] Given that paid leave for this purpose has only been made available in recent times, it
is not surprising that there is little evidence about the amount of leave that has been taken by
employees in reliance on such provisions.
[67] Further, given the lack of availability of leave for this purpose there is little evidence
about how much actual unpaid leave is being taken by employees which would, if the clause
was in operation, now be paid leave.
[68] Therefore, we are not satisfied that the ACTU has made out a case that ten days paid
leave for all award covered employees is necessary to meet the modern award objective.
The modern awards objective
[69] We are required to have regard in making our decision to the modern awards
objective.
(a) relative living standards and the needs of the low paid;
[70] The ACTU submitted that the majority of award reliant employees are probably also
low paid. It submitted that it can be assumed that these low paid employees may be affected
by family and domestic violence. Paid leave would prevent these employees from being
further disadvantaged by being required to take unpaid leave.29
[71] Australian Chamber of Commerce and Industry (ACCI) submitted that given the
evidence is not disaggregated by socio-economic status it is difficult to assess this criterion. It
submitted that the evidence did not support a finding that socio-economic status does not
affect the likelihood of experiencing family and domestic violence.30
[72] The AIG submitted that the ACTU had not undertaken the necessary analysis that is
required under this criterion. It submitted that the ACTU’s proposed entitlement would apply
to all employees not just the low paid.31
[73] We accept the submission that the majority of low paid employees are award
dependent. We accept the submission that some of these employees are likely to be impacted
by family and domestic violence. We also accept that low paid employees are likely to have
fewer financial resources such that the impact of a loss of pay arising from the need to take
unpaid leave will have a disproportionate impact on these employees. We do not accept that
just because the entitlement would flow to all employees means that it would not
28 Exhibit B6 at 6.2
29 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [237] – [238].
30 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.3-12.4].
31 Final Submissions of the Australian Industry Group dated 28 November 2016 at [758] – [760].
[2017] FWCFB 3494
15
disproportionately benefit the low paid. We therefore accept that the provision of paid leave
would assist the relative living standards and the needs of the low paid.
(b) the need to encourage collective bargaining;
[74] The ACTU submitted that the evidence established that it was difficult for unions to
convince employers to include family and domestic violence leave in agreements. It submitted
that employers would be more likely to bargain around family and domestic violence leave if
there was a clear and consistent minimum benchmark.32 It relied on the decision of the Full
Bench in its review of the Fire Fighting Industry Award 2010 to support this submission. The
Full Bench had found that the prohibition on part-time work in the modern award was a
disincentive for the UFU to bargain on this issue.33
[75] It further submitted that there was no evidence before the Commission which would
support the proposition that the inclusion of paid family and domestic violence leave in
awards would discourage collective bargaining.
[76] The AIG submitted that the inclusion of paid family and domestic violence leave in
awards would discourage collective bargaining because this is the very entitlement unions are
seeking in bargaining and once achieved they would have little incentive to bargain. It was
further submitted that employers will be less likely to bargain as they will have less room to
bargain. Employers, it submitted, may take the view that this is a fair and relevant standard
and cease to provide any additional entitlements.34
[77] ACCI submitted that introduction of a uniform entitlement would remove the impetus
of employers to bargain for the entitlement.35
[78] There is no evidence before us that would lead us to conclude that the provision of
paid family and domestic violence leave would discourage collective bargaining. We note that
the inclusion of parental leave in the NES has not been a disincentive for bargaining about
superior entitlements in collective agreements. However, we are unable to conclude that the
inclusion of such an entitlement would encourage collective bargaining. We consider this to
be a neutral factor in our consideration.
(c) the need to promote social inclusion through increased workforce participation;
[79] The ACTU submitted that the evidence demonstrates that family and domestic
violence disrupts employment and precludes workforce participation. Social inclusion means
more than having a job. It submitted that having a job with inadequate safety net protections
against employment disruption that can occur as a result of needing time away from work to
attend to matters arising from family and domestic violence can contribute to social
exclusion.36
32 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [240].
33 Ibid at [242].
34 Final Submissions of the Australian Industry Group dated 28 November 2016 at [761] – [769].
35 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.8] – [12.10].
36 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [244] – [246].
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[80] The AIG submitted that the ACTU’s own evidence found that employed women and
unemployed women experience similar levels of family and domestic violence. It further
submitted that the evidence showed that the majority of women who experienced family or
domestic violence were employed. It submitted that there is no evidence that the experience
of family and domestic violence precludes employees from participating in the workforce. It
further submitted that there is an insufficient evidentiary basis that the inclusion of the clause
would increase workforce participation. It said that given that some employers do provide
such entitlements such evidence should have been available.37
[81] ACCI submitted that there is no evidence in this matter that a lack of paid domestic
violence leave entitlements prevents participation in the workforce and results in social
exclusion.38
[82] We accept the ACTU’s submission that the provision of paid family and domestic
violence leave would promote social inclusion. We accept the evidence which was largely
unchallenged about the impact of family and domestic violence on employees’ workforce
participation and, in particular on women’s workforce participation.
(d) the need to promote flexible modern work practices and the efficient and productive
performance of work;
[83] The ACTU submitted that this is a neutral consideration.39
[84] AIG submitted that the taking of leave will have an adverse impact on the need to
promote flexible modern work practices and the efficient and productive performance of
work. Employers may find it difficult to engage relief staff and the relief staff may lack the
necessary skills, knowledge or experience to perform the work. This is exacerbated it was
submitted by the lack of discretion available to employers to manage the leave.40
[85] ACCI submitted that employees will either lose output due to the absence or additional
costs if they are required to fund replacements.41
[86] We accept that employers will incur additional costs due to the absence of employees.
However we are not satisfied that this is what this criterion is addressing. The provision of
leave will not impact on the manner in which work is performed and as such we consider this
to be a neutral consideration.
37 Final Submissions of the Australian Industry Group dated 28 November 2016 at [770] – [781].
38 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [8.39] – [8.43].
39 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [247].
40 Final Submissions of the Australian Industry Group dated 28 November 2016 at [589] – [592].
41 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.16].
[2017] FWCFB 3494
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(e) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts;
[87] It is agreed that this is a neutral consideration.
(f) the principle of equal remuneration for work of equal or comparable value;
[88] The ACTU submitted that family and domestic violence disproportionately affects
women. It says that as a consequence women are more likely to have to deplete their personal
and annual leave entitlements. It suggests therefore that as a result women are subject to
additional indirect discrimination with respect to the treatment of leave. The ACTU submitted
that women are not receiving leave entitlements on equal terms to men.42 Even if we accept
that submission, we fail to see how providing paid family and domestic violence leave would
ensure that employees receive equal remuneration for work of equal or comparable value. We
agree with the submissions of the AIG43 and ACCI44 that this is a neutral consideration.
(g) the likely impact of any exercise of modern award powers on business, including on
productivity, employment costs and the regulatory burden;
[89] The ACTU submitted that the evidence established the significant negative impact on
productivity and employment costs and on the national economy. The ACTU acknowledged
that the provision of paid leave will increase employment costs. It submitted that those costs
will be between $2.96 and $29.6 million. It submitted that these costs are reasonable and
proportionate having regard to the evidence that the cost of family and domestic violence to
the national economy is estimated to accumulate to $323.4 billion over a 30 year period to
2045.45
[90] It submits that the provision of leave will assist employees to leave violent
relationships and this will result in a reduction in family and domestic violence and hence the
disruption it causes to workplaces.46
[91] The AIG submitted that there is insufficient material before the Commission to
properly assess the impact of the claim. There is insufficient evidence to determine the
number of employees who experience family and domestic violence and the amount of leave
they may take. This is compounded by the fact that much of the evidence concentrates on
women’s experiences and there is little evidence about the extent of men’s experience of
family and domestic violence. Further, we do not know what employers currently do when
asked by employees for leave. We do not know the extent to which employers currently grant
paid leave either by permitting employees to take personal leave, annual leave or other paid
42 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [249] – [251].
43 Final Submissions of the Australian Industry Group dated 28 November 2016 at [787] – [790].
44 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.18]
45 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [253].
46 Ibid at [252]-[255].
[2017] FWCFB 3494
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leave. It submits that the creation of a new entitlement will increase employment costs. It
further submitted that the regulatory burden will increase.47
[92] It submitted that microeconomic impact on businesses including small businesses will
be significant. AIG notes that in performing its functions, the Commission must take into
account the special circumstances of small and medium businesses.48
[93] The AIG submitted that a much higher proportion of employees of small businesses
are award reliant. As such, small businesses will be hit particularly hard by the claim.
Further, it submitted that it is more difficult for small businesses to manage leave as there are
fewer remaining employees to cover the absent employees.49
[94] ACCI submitted that the ACTU had not put forward credible evidence about the costs
of the claim. It submitted that the claim will impact business and administrative costs.
Because of the lack of evidence, the Full Bench cannot assess or understand the impact of
these costs.50
[95] We accept that we are unable to assess the impact of the clause on employment costs.
It is unfortunate that none of the studies to date have uncovered the extent to which employers
informally or formally provide such leave or the extent to which employees access existing
entitlements for family and domestic violence leave.
[96] We accept that providing paid leave to employees who experience family and
domestic violence may assist employees to leave violent relationships and hence reduce the
disruption to the workplace and increase the productivity of those who experience family and
domestic violence. The provision of such paid leave would send a message to employees that
family and domestic violence is an important workplace issue and encourage those who
experience family and domestic violence to take preventative action earlier and thereby
reduce the disruption to the workplace and hence improve the productivity of those
employees.
[97] However, we accept that it is difficult to measure these impacts in circumstances
where such leave has only recently been introduced and the informal provision of such leave
has not been measured.
[98] We accept that the provision of paid leave will increase costs to employers and that
given the lack of data, the impact on employers of that increase in costs is difficult to assess.
[99] This supports our conclusion that we should take a cautious approach to the
introduction of family and domestic violence leave, particularly paid family and domestic
violence leave.
47 Final Submissions of the Australian Industry Group dated 28 November 2016 at [791] – [797].
48 Fair Work Act 2009 s.3(g).
49 Final Submissions of the Australian Industry Group dated 28 November 2016 at [798] – [807].
50 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.19] – [12.21].
[2017] FWCFB 3494
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(h) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards; and
[100] We set out below our concerns about the clause and do not repeat them here. We
consider that the proposed clause is not simple or easy to understand.
[101] The AIG submitted that the inclusion of the provision would result in a significant
expansion of the safety net. It submitted that we cannot assume the costs can be absorbed.
Further it submits that its inclusion may encourage applications for leave from employees
who face different types of adversity.51
[102] ACCI submitted that the introduction of a new and complex benefit is the opposite of
simplicity and the more added to the safety net by definition increases the likelihood of
instability.52
[103] The arguments put forward by the AIG and ACCI would, if accepted, see the modern
award system stagnate over time. To be relevant, modern awards must respond to changing
circumstances.
[104] While we have not accepted the ACTU’s claim, that does not preclude a finding in the
future that the provision of paid family and domestic violence leave is necessary to meet the
modern awards objective. That will depend on the evidence before the Commission at that
time.
(i) the likely impact of any exercise of modern award powers on employment growth,
inflation and the sustainability, performance and competitiveness of the national
economy.
[105] The ACTU relies on its submissions in relation to s.134(1)(f). It submits that the
provision of family and domestic violence leave will contribute to a reduction in the impact of
family and domestic violence and hence a reduction in productivity losses and employment
costs.
[106] The AIG submitted that the claim may undermine employment growth, inflation and
the sustainability, performance and competitiveness of the national economy. It relies upon
the submissions it made in relation to s.134(1)(b), (d), (f) and (g).53
[107] ACCI submitted that there was insufficient evidence before the Commission to make
an assessment of any impact on the broader economy.54
[108] We accept the submission that there is insufficient evidence before us that would
enable us to determine the impact on these factors if paid family and domestic violence leave
was included in all modern awards.
51 Final Submissions of the Australian Industry Group dated 28 November 2016 at [810] – [816].
52 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.22] – [12.23].
53 Final Submissions of the Australian Industry Group dated 28 November 2016 at [817].
54 Further Submissions of the Australian Chamber of Commerce and Industry dated 28 November 2016 at [12.24] – [12.25].
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The scope of the clause
[109] The ACTU clause is directed at violence by a person against a current or former
partner or member of the person’s family or household. Leave is available for the purpose of
“attending activities related to the experience of being subjected to family and domestic
violence.”
[110] The ACTU rejected the submission its definition is too broad and does not require the
behaviour to have an impact or an effect on employees. It submitted that this is not relevant
because the employer is not required to “inquire into the circumstances of the violence the
employee is being subjected, rather the purpose for which the leave is requested.”55 It is
submitted that all the employer is required to do is enquire of the purpose for which they need
to be absent from work.56 The ACTU further rejected the submission that there was no
requirement that the leave be necessary, i.e. an employee may be able to arrange the activities
for a time he or she was not rostered to be at work. It submitted that there was nothing in its
proposal that would prevent an employer negotiating with an employee about this.57
[111] We accept the submission that the current clause is too broad and uncertain in its
operation.
[112] For example, there is no requirement that the family member who is the perpetrator of
the violence reside with the employee who is applying for the leave or that the employee is at
risk of repeated violence. So for example, an employee who was assaulted by his or her
brother would be entitled to family and domestic violence leave even if the future contact with
the brother was unlikely. Further the definition would capture violence committed by a
member of the person’s household towards her or him even if no relationship existed between
the household member and the employee other than they shared a house. We accept the
submission that this is too broad a scope.
[113] Further, we consider that the leave must be necessary to deal with the family and
domestic violence. We accept the submission that the expression “attending activities related
to the experience of being subjected to family and domestic violence” is too uncertain.
[114] Employees’ experiences of domestic violence can have long term effects both
physically and psychologically. An employee whilst fit for work may need on-going
counselling or a child may need on-going counselling. We accept the submission that while
employers have a role in supporting employees who have experienced family and domestic
violence, the provision of leave for family and domestic violence should be limited to dealing
with the immediate impact of such violence such as finding alternative accommodation or
attending urgent court hearings.
[115] We accept that these difficulties could be overcome by a narrower and more certain
clause but given our conclusion about the provision of paid leave it is not necessary for us to
include in this decision a re-drafted clause. However, given our preliminary view about the
55 Submissions of the Australian Council of Trade Unions dated 5 October 2015 at [92] – [94]; Final Submissions of the
Australian Council of Trade Unions dated 28 November 2016 at [181].
56 Ibid at [103].
57 Final Submissions of the Australian Council of Trade Unions dated 28 November 2016 at [183].
[2017] FWCFB 3494
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provision of unpaid leave we propose to provide the parties with a proposed clause for their
consideration in the next stage of the review.
Conclusion
[116] In rejecting the ACTU’s proposal we have not rejected the view that family and
domestic violence is a significant community issue, and that there needs to be a workplace
response to family and domestic violence. So much is confirmed by our preliminary view
that there is a need for unpaid family and domestic violence leave and access to personal
leave in a wider range of circumstance. Our decision must be seen in the context of the
legislative framework and the scope of the ACTU’s proposed clause.
[117] In making our decision we are not free to decide on the merits what would be desirable
to include in modern awards. We are required to determine what is necessary to achieve the
modern award objective. However we accept that what is necessary may change over time.
[118] A review of modern awards is not an inter partes application and hence the rejection
of the ACTU’s proposal does not necessarily end the matter. The Full Bench is required to
review each modern award to determine if the awards and the NES provide a fair and relevant
safety net of terms and conditions.
[119] Based on the largely uncontested evidence before us we have formed the preliminary
view that it is necessary to meet the modern award objectives for provisions to be inserted in
modern awards which would allow for a period of unpaid family and domestic violence leave
and which would allow employees who experience family and domestic violence access to
personal/carer’s leave for the purpose of taking family and domestic violence leave. As set out
in [45], such unpaid leave serves to confirm the significance of family and domestic violence
leave as a workplace right and provides an employment protection in circumstances where
there is a need to access such leave.
[120] There has been no opportunity for interested parties to make submissions or call
evidence if necessary in relation to our preliminary view and we intend to provide such an
opportunity.
[121] We propose to convene a mention to hear from interested parties about the future
timetabling of this review.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR594203
WORK R WON MAMISSION THE AUSTRALIA THE SEALOF
[2017] FWCFB 3494
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Annexure A
FAMILY AND DOMESTIC VIOLENCE LEAVE
X.1 Definition
For the purpose of this clause:
Family and domestic violence is any violent, threatening or abusive behaviour by a
person against a current or former partner or member of the person’s family or
household.
Employee includes part-time and casual employees.
Sensitive personal information means information that identifies the employee and
discloses their experience of being subjected to family and domestic violence.
X.2 Family and Domestic Violence Leave
X.2.1 An employee is entitled to 10 days per year of paid family and domestic violence
leave for the purpose of attending to activities related to the experience of being subjected to
family and domestic violence. Such activities may include (but are not limited to):
(a) attending legal proceedings, counselling, appointments with medical, financial or
legal professionals; and/or
(b) relocation or making other safety arrangements.
X.2.2 An employee’s paid yearly entitlement to family and domestic violence leave:
(a) becomes available in full, on and from the first day of each year of employment;
and
(b) is payable at the ordinary hourly rate applicable to the classification of the
employee under the award, including shift loadings and penalties but not including
any over-award payments; and
(c) does not accrue for year to year; and
(d) is not payable on termination of employment.
X.2.3 Upon exhaustion of the leave entitlement in clause X.2.1, employees will be entitled to
up to 2 days unpaid family and domestic violence leave on each occasion for the purpose of
attending to activities related to the experience of being subjected to family and domestic
violence.
X.2.4 Family and domestic violence leave may be taken as:
(a) a continuous period;
[2017] FWCFB 3494
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(b) a single period of one day;
(c) any separate period/s of less than one day which the employer and employee agree.
X.2.5 Family and domestic violence leave is in addition to other leave entitlements in
modern awards and the National Employment Standards.
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 clauses X.2.1 and X.2.3. 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 Sensitive personal information provided by the employee to the employer for the
purposes of seeking leave under this clause will be kept confidential to the extent possible,
except where disclosure is required by law or to prevent a serious threat to the life, health and
safety of any individual.
