1
Fair Work Act 2009
s.156 – 4 yearly review of modern awards
4 yearly review of modern awards – Family and Domestic Violence Leave
(AM2015/1)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER SPENCER MELBOURNE, 26 MARCH 2018
4 yearly review - Family and Domestic Violence Leave – Determination of Model Term for
Unpaid Leave.
Chapters Page Paragraph
1. Introduction
1.1 Background
1.2 The Process
4
[1]
[16]
2. Legislative Framework for the Review 9 [29]
3. Family and Domestic Violence: The Evidence 18 [64]
4. Accessing personal/carer’s leave - jurisdiction 27 [108]
5. Unpaid Leave
5.1 The preliminary view
5.2 The model term
5.3 Jurisdiction and the modern awards objective
37
[159]
[191]
[270]
6. Next Steps 59 [304]
ATTACHMENTS
Attachment A – List of Statements issued
Attachment B – List of Submissions filed
Attachment C – List of modern awards to be varied
Attachment D – List of cases
69
70
73
76
[2018] FWCFB 1691
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 1691
2
ABBREVIATIONS
Act Fair Work Act 2009 (Cth)
ABI Australian Business Industrial and the New South Wales
Business Chamber
ABS Australian Bureau of Statistics
ACCI Australian Chamber of Commerce and Industry
ACTU Australian Council of Trade Unions
ADFVC Australian Domestic and Family Violence
Clearinghouse
AFPCS Australian Fair Pay and Conditions Standard
AI Act Acts Interpretation Act 1901 (Cth)
Ai Group Australian Industry Group
Amended Claim ACTU claim for family and domestic violence leave of
15 June 2015 reproduced at [4] of this decision
AMIC Australian Meat Industry Council
APSC Australian Public Service Commission
Commission Fair Work Commission
GVRN Gendered Violence Research Network (University of
New South Wales)
ILO International Labour Organization
Majority Decision [2017] FWCFB 3494
Minority Decision [2017] FWCFB 1133
MEA Master Electricians Australia
National Plan Department of Social Services (2011), National plan to
reduce violence against women and their children
2010–2022, Australian Government
NatRoad National Road Transport Association
NES National Employment Standards
PwC Price Waterhouse Coopers
Review 4 yearly review of modern awards
SDA Shop, Distributive and Allied Employees Association
VicHealth Report VicHealth and Department of Human Services (2004),
The health costs of violence: measuring the burden of
disease caused by intimate partner violence, Victorian
Government
WR Act Workplace Relations Act 1996 (Cth)
[2018] FWCFB 1691
3
List of charts
Chart 1 Experience of violence by current/previous partner since the age of 15 years,
by labour force status, all persons
Chart 2 Experience of violence by current partner since the age of 15 years, females,
by frequency of violence
List of tables
Table 1 Experience of assault since the age of 15 years, whether took time off work in
the 12 months after the most recent incident of violence, by type of assault and
gender of perpetrator
Table 2 Domestic Violence Clauses and Leave
[2018] FWCFB 1691
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1. Introduction
1.1 Background
[1] Section 156 of the Fair Work Act 2009 (Cth) (the Act) provides that the Fair Work
Commission (the Commission) must conduct a review of all modern awards every four years
(the Review).
[2] As part of the Review, the Australian Council of Trade Unions (ACTU) made a claim
to include an entitlement to 10 days’ paid domestic violence leave in all modern awards1. The
ACTU claim was opposed by a number of Employer parties on both jurisdiction and merits
grounds. The Australian Industry Group (Ai Group) and the Australian Chamber of
Commerce and Industry (ACCI) submitted that the jurisdictional objections to the claim
should be determined as a threshold issue.
[3] On 1 December 2014, the Commission published a Statement confirming that
jurisdictional objections advanced by the Employer parties would be dealt with as a threshold
issue. The following four jurisdictional issues were identified by the Employer parties and set
out in Directions published on 10 June 2015:
‘(i) 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?
(ii) 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?
(iii) Are any elements of the claims of the ACTU or individual unions inconsistent with
Part 6-2 of the Fair Work Act 2009?
(iv) 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?’2
[4] After the filing of submissions in relation to the jurisdictional issues, the ACTU filed
an amended claim for family and domestic violence leave (the Amended Claim), 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;
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151and2-amendeddir-100615.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc8583.htm
[2018] FWCFB 1691
5
(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.
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.’3
[5] The Amended Claim had the effect of removing a substantial part of the Employer
parties’ jurisdictional objections, with the only outstanding objection being to clause X.3.3.
The Employer parties submitted that clause X.3.3, which dealt with confidentiality, could not
be included in a modern award because it was not ‘about’ a matter in s.139(1) of the Act and
was not an incidental or machinery term as permitted by s.142. The ACTU submitted that the
clause was incidental to the entitlement in clause X.2 and was essential to making the leave
entitlement operate in a practical way (within the meaning of s.142(1)).
[6] On 22 October 2015, a Full Bench issued a decision in relation to the jurisdictional
objections.4 The Full Bench held that, without hearing the evidence, they were unable to
conclude that clause X.3.3 of the proposed family and domestic violence leave clause was
beyond jurisdiction. The Full Bench noted:
‘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”.’5
[7] The decision went on to confirm that the matter would proceed to a final hearing
before a Full Bench.
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5585.htm
[2018] FWCFB 1691
6
[8] A Full Bench consisting of former Vice President Watson, Deputy President Gooley
and Commissioner Spencer was then constituted to determine the Amended Claim. The
matter was heard from 14 to 18 November 2016 and 1 to 2 December 2016.
[9] On 27 February 2017 former Vice President Watson issued a decision rejecting the
Amended Claim (the Minority Decision).6 The Vice President found:
‘There can be no doubt that family and domestic violence is widespread in Australian society. It
has implications for community safety, policing, law enforcement, family and other
relationships, education and workplaces. There can also be no doubt that employers should be
aware of the problem and adopt approaches that assist affected employees and limit the impact
of the problem on their business.’7
[10] However, the Vice President concluded:
‘In all of the circumstances I am not satisfied that the family and domestic violence leave claim
by the ACTU is necessary to provide a fair and relevant minimum safety net of terms and
conditions. It follows that the ACTU claim should be rejected.’8
[11] On 3 July 2017, Deputy President Gooley and Commissioner Spencer issued a joint
decision (the Majority Decision) which also rejected the Amended Claim.9 The Majority
Decision stated:
‘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 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.’10
[12] This decision addresses the ‘preliminary views’ expressed in the Majority Decision.
[13] After the Majority Decision was handed down, the President reconstituted the Full
Bench in this matter pursuant to s.622 of the Act, with the President replacing Vice President
Watson (who had resigned) as the third member of the Full Bench.
[14] Pursuant to s.623 of the Act, the President has taken into account everything that
occurred before the Commission, and everything that the Commission did, in relation to the
matter before the President began to deal with the matter.
[15] The next section sets out the steps taken following the reconstitution of the Full
Bench.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3494.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1133.htm
[2018] FWCFB 1691
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1.2 The Process
[16] A Mention was held on 21 July 2017, at which there was general support for the
Commission providing some guidance about the issues to be addressed in submissions on the
preliminary views in the Majority Decision.
[17] In a Statement issued on 24 July 2017,11 the reconstituted Full Bench made clear that
in determining the remaining issues, the Full Bench would have regard to all of the
submissions and evidence filed in the proceedings. A list of that material was attached to the
Statement.
[18] A further Statement was issued on 3 August 201712 (the August 2017 Statement)
which, in summary:
attached a revised list of submissions and evidence filed in the proceedings;
confirmed that the Australian Government Industry Award 2016 would be
considered as part of the Amended Claim and that any outcome may apply to that
award;
finalised the list of issues to be addressed in these proceedings; and
made some observations regarding the implementation of any outcome from these
proceedings.
[19] In relation to the last mentioned point, the Full Bench said:
‘In the event that the Full Bench confirms the preliminary views in respect of unpaid
leave and access to personal/carer’s leave for the purpose of taking family and
domestic violence leave, the likely outcome will be a model term.
If any party wishes to contend that such a model term should not be inserted into a
particular award or that a tailored industry specific approach should be adopted, then
they should set out their position … Any awards so identified will be the subject of
further proceedings after the resolution of a model term.
To be clear, if a model term(s) is determined as part of these proceedings and we are
satisfied that such a term is necessary to achieve the modern awards objective then it
will be inserted into each modern award except those modern awards [for] which a
party has indicated a preference for a different approach’.13
[20] Submissions were received in response from the following parties:
(i) Ai Group;
(ii) Australian Public Service Commission (APSC);
(iii) National Road Transport Association (NatRoad);
(iv) Australian Meat Industry Council (AMIC);
(v) ACCI; and
(vi) ACTU.
[21] A summary of these submissions was published on 15 September 2017.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-summary-150917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-natroad-010817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-apsc-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4047.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3865.htm
[2018] FWCFB 1691
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[22] A Research Reference List was also published on 15 September 2017. The Research
Reference List included a non-exhaustive list of the research materials and data sources that
parties had referred to in their submissions, together with further publications identified by
Commission staff as relevant to the proceedings.
[23] In order to assist parties to prepare their submissions, Commission staff also published
a Background Paper exploring a number of issues relating to the form and content of a model
term that would give effect to the preliminary views in the Majority Decision. The
Background Paper identified the five key elements to be considered in drafting a model term:
(i) the definition of ‘family and domestic violence’ for the purposes of the term;
(ii) the purpose of the leave (i.e. in what circumstances an employee can access the
leave and which employees may take the leave);
(iii) unpaid leave;
(iv) the evidence requirements; and
(v) privacy considerations.
[24] The Background Paper examined each of these elements and provided various options
as to how they might be dealt with in a model term. The Background Paper also posed a
number of questions to the parties in relation to these issues.
[25] A Statement issued on 6 October 201714 noted that submissions in reply had been
received from the following parties:
(i) ACCI
(ii) AMIC
(iii) Ai Group
(iv) Transport Workers’ Union of Australia
(v) ACTU
(vi) Master Electricians Australia (MEA).
[26] The Statement also noted that a conference would be held on 13 October 2017 before
the President and identified the issues for discussion at that conference.
[27] Conferences were held before the President on 13, 18, 19 and 20 October 2017 and
were attended by representatives of the ACTU, Ai Group, ACCI, AMIC, NatRoad, MEA, the
Pharmacy Guild of Australia and the Community and Public Sector Union. At the
conferences, there was a measure of agreement reached in relation to some aspects of a draft
model unpaid family and domestic violence leave term. We return to this matter in Chapter 5.
[28] A list of the Statements issued in this matter is at Attachment A. A list of submissions
filed by the parties is at Attachment B.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-mea-031017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-021017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-twu-290917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-011017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-290917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-290917.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5192.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-paper-150917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-2-researchlist-150917.pdf
[2018] FWCFB 1691
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2. Legislative Framework for the Review
[29] Section 156 of the Act requires the Commission to conduct a 4 yearly review of
modern awards as soon as practicable after 1 January 2014.
[30] Subsection 156(2) provides that the Commission must review all modern awards and
may, among other things, make determinations varying modern awards. In this context
‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back
upon’.15
[31] Section 156 clearly delineates what must be done in a Review, what must not be done
and what may be done. Further, where the legislative intent of the section is to qualify a
discretion this is done expressly, as in s.156(3) - the Commission may vary modern award
minimum wages ‘only if’ it is satisfied that the variation is justified by work value reasons.
This may be contrasted with the discretion in s.156(2)(b)(i) to make determinations varying
modern awards in a Review, which is expressed in general, unqualified, terms.
[32] If a power to decide is conferred by a statute and the context (including the subject-
matter to be decided) provides no positive indication of the considerations by reference to
which a decision is to be made, a general discretion confined only by the scope and purposes
of the legislation will ordinarily be implied.16 However, a number of provisions of the Act
which are relevant to the Review operate to constrain the breadth of the discretion in
s.156(2)(b)(i). In particular, the Review function is in Part 2-3 of the Act and hence involves
the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)). It
follows that the ‘modern awards objective’ in s.134 applies to the Review. Section 138
(achieving the modern awards objective) also applies.
[33] A range of other provisions of the Act are relevant to the Review: s.3 (object of the
Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES);
s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of
modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3;
s.284 (the minimum wages objective); s.577 (performance of functions etc by the
Commission); s.578 (matters the Commission must take into account in performing functions
etc), and Division 3 of Part 5-1 (conduct of matters before the Commission).
[34] Any variation of a modern award arising from the Review must comply with the
requirements of the Act relating to the content of modern awards. Division 3 of Part 2-3 deals
with the terms of modern awards, in particular terms that may or must be included in modern
awards, and terms that must not be included in modern awards. Division 3 includes s.138.
This Division also prohibits award terms that contravene s.55 (which deals with the
interaction between the NES and modern awards). These provisions, in an appropriate case,
may operate to constrain the discretion in s.156(2)(b)(i).17
[35] Division 6 of Part 2-3 also contains specific provisions relevant to the exercise of
modern award powers which apply to the Review. If the Commission were to make a modern
award, or change the coverage of an existing modern award in the Review, then the
requirements in s.163 would need to be satisfied. Sections 165 and 166 deal with when
variation determinations come into operation. Variation determinations arising from the
Review will generally operate prospectively, unless the variation is made under s.160 (which
deals with variations to remove ambiguities or uncertainties, or to correct errors: see
[2018] FWCFB 1691
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ss.165(2)(a) and 166(3)(a)) and the Commission is satisfied that there are exceptional
circumstances that justify retrospectivity (ss.165(2)(b) and 166(3)(b)).
[36] The general provisions relating to the performance of the Commission’s functions in
Division 2 of Part 5-1 of the Act also apply to the Review. Sections 577 and 578 are
particularly relevant in this regard. Section 577 states:
‘577 Performance of functions etc by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWC performs its functions and
exercises its powers efficiently etc (see section 581).’
[37] Section 578 states:
‘578 Matters the FWC must take into account in performing functions etc
In performing functions or exercising powers, in relation to a matter, under a part of this Act
(including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent
and eliminate discrimination on the basis of race, colour, sex, sexual orientation,
age, physical or mental disability, marital status, family or carer’s responsibilities,
pregnancy, religion, political opinion, national extraction or social origin.’
[38] As stated in s.578(a), in performing functions and exercising powers under a part of
the Act (including the Review function under Part 2-3) the Commission must take into
account the objects of the Act and any particular objects of the relevant part. The object of
Part 2-3 is expressed in s.134 (the modern awards objective). The object of the Act is set out
in s.3, as follows:
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for
businesses, promote productivity and economic growth for Australia’s future economic
prosperity and take into account Australia’s international labour obligations; and
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(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions through the National Employment Standards, modern awards and national
minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages
and conditions can no longer be undermined by the making of statutory individual
employment agreements of any kind given that such agreements can never be part of a fair
workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for
flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by
recognising the right to freedom of association and the right to be represented, protecting
against unfair treatment and discrimination, providing accessible and effective procedures to
resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules governing
industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.’
[39] In conducting the Review the Commission is able to exercise its usual procedural
powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission is not
bound by the rules of evidence and procedure (s.591) and may inform itself in relation to any
matter before it in such manner as it considers appropriate (s.590(1)).
[40] Section 156 imposes an obligation on the Commission to review all modern awards
and each modern award must be reviewed in its own right. The requirement in s.156(5) to
review each modern award ‘in its own right’, is intended to ensure that the Review is
conducted ‘by reference to the particular terms and the particular operation of each particular
award rather than by a global assessment based upon generally applicable considerations’.18
However, while the review of each modern award must focus on the particular terms and
operation of the particular award, this does not mean that the review of a modern award is to
be confined to a single holistic assessment of all of its terms.19 Further, s.156(5) provides that
the requirement that each modern award be reviewed in its own right does not prevent the
Commission from reviewing two or more modern awards at the same time.
[41] While s.156(5) does not confine the review of a modern award to a single holistic
assessment of all of its terms, a single holistic assessment of each modern award will be
required prior to the conclusion of the Review. Such an assessment will be necessary so that
each modern award is reviewed, in its own right, to ensure that it achieves the modern awards
objective and only includes terms to the extent necessary to achieve that objective.
[42] In CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo American)20 the Full
Court of the Federal Court discussed the nature of the Commission’s task in conducting the
Review:
‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years.
That is the task upon which the Commission was engaged. The statutory task is, in this
context, not limited to focusing upon any posited variation as necessary to achieve the modern
[2018] FWCFB 1691
12
awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a
whole. The review is at large, to ensure that the modern awards objective is being met: that
the award, together with the National Employment Standards, provides a fair and relevant
minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and
must be included only to the extent necessary to achieve such an objective.
Viewing the statutory task in this way reveals that it is not necessary for the Commission to
conclude that the award, or a term of it as it currently stands, does not meet the modern award
[sic] objective. Rather, it is necessary for the Commission to review the award and, by
reference to the matters in s 134(1) and any other consideration consistent with the purpose of
the objective, come to an evaluative judgment about the objective and what terms should be
included only to the extent necessary to achieve the objective of a fair and relevant minimum
safety net.’21
[43] The Review is to be distinguished from inter partes proceedings. The Review is
conducted on the Commission’s own motion and is not dependent upon an application by an
interested party. Nor is the Commission constrained by the terms of a particular application.22
The Commission is not required to make a decision in the terms applied for (s.599) and, in the
Review, may vary a modern award in whatever terms it considers appropriate, subject to its
obligation to accord interested parties procedural fairness and the application of relevant
statutory provisions as outlined above.
[44] In 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail
Sectors)23 the Full Bench summarised the general propositions applying to the Commission’s
task in the Review, as follows:
‘1. The Commission’s task in the Review is to determine whether a particular modern
award achieves the modern awards objective. If a modern award is not achieving the
modern awards objective then it is to be varied such that it only includes terms that are
‘necessary to achieve the modern awards objective’ (s.138). In such circumstances
regard may be had to the terms of any proposed variation, but the focal point of the
Commission’s consideration is upon the terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of the merit
argument required will depend on the circumstances. Some proposed changes are
obvious as a matter of industrial merit and in such circumstances it is unnecessary to
advance probative evidence in support of the proposed variation. Significant changes
where merit is reasonably contestable should be supported by an analysis of the
relevant legislative provisions and, where feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into account
previous decisions relevant to any contested issue. For example, the Commission will
proceed on the basis that prima facie the modern award being reviewed achieved the
modern awards objective at the time it was made. The particular context in which
those decisions were made will also need to be considered.
4. The particular context may be a cogent reason for not following a previous Full Bench
decision, for example:
the legislative context which pertained at that time may be materially different
from the FW Act;
[2018] FWCFB 1691
13
the extent to which the relevant issue was contested and, in particular, the extent of
the evidence and submissions put in the previous proceeding will bear on the
weight to be accorded to the previous decision; or
the extent of the previous Full Bench’s consideration of the contested issue. The
absence of detailed reasons in a previous decision may be a factor in considering
the weight to be accorded to the decision.’ 24
[Endnotes omitted]
[45] We now turn to the relevance of the ‘modern awards objective’ to the Review.
[46] The modern awards objective is set out in 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
(da) 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; 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.
When does the modern awards objective apply?
[2018] FWCFB 1691
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(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).’
[47] The modern awards objective is to ‘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 the particular considerations identified in ss.134(1)(a) to (h)
(the s.134 considerations). The obligation to take into account the s.134 considerations means
that each of these matters, insofar as they are relevant, must be treated as a matter of
significance in the decision-making process.25 No particular primacy is attached to any of the
s.134 considerations26 and not all of the matters identified will necessarily be relevant in the
context of a particular proposal to vary a modern award.
[48] Section 138 of the Act emphasises the importance of the modern awards objective:
‘138 Achieving the modern awards objective
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.’
[49] To comply with s.138, the terms included in modern awards must be ‘necessary to
achieve the modern awards objective’.
[50] In Shop, Distributive and Allied Employees Association v National Retail Association
(No.2)27 Tracey J considered what it meant for the Commission to be satisfied that making a
determination varying a modern award (outside a 4 yearly review) was ‘necessary to achieve
the modern awards objective’ for the purposes 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 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.
…
[2018] FWCFB 1691
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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.’28
[51] The above observation – in particular the distinction between that which is ‘necessary’
and that which is merely ‘desirable’ – is apposite to s.138, including the observation that
reasonable minds may differ as to whether a particular award term or proposed variation is
necessary, as opposed to merely desirable. What is ‘necessary’ to achieve the modern awards
objective in a particular case is a value judgment, taking into account the s.134 considerations
to the extent that they are relevant having regard to the context, including the circumstances
pertaining to the particular modern award, the terms of any proposed variation and the
submissions and evidence.29
[52] If a modern award is not achieving the modern awards objective then it is to be varied
so that it only includes terms that are ‘necessary to achieve the modern awards objective’. In
such circumstances regard may be had to the terms of any proposed variation, but the focal
point of the Commission’s consideration is upon the terms of the modern award as proposed
to be varied.
[53] The terms of s.138 do not require that the Commission be satisfied that a particular
variation proposed by a party is necessary to achieve the modern awards objective. Such an
approach would inappropriately focus attention on the particular variation proposed, rather
than on the terms of the modern award as proposed to be varied.30 In 4 Yearly Review of
Modern Awards - Preliminary Jurisdictional Issues31 the Full Bench considered what had to
be demonstrated by the proponent of an award variation and concluded that:
‘… To comply with s.138 the formulation of terms which must be included in modern award[s]
or terms which are permitted to be included in modern awards must be in terms ‘necessary to
achieve the modern awards objective’… In the Review the proponent of a variation to a
modern award must demonstrate that if the modern award is varied in the manner proposed
then it would only include terms to the extent necessary to achieve the modern awards
objective.’32
[54] It is not necessary to make a finding that the award fails to satisfy one or more of the
s.134 considerations.33 Generally speaking, the s.134 considerations do not set a particular
standard against which a modern award can be evaluated; many of them may be characterised
as broad social objectives. As the Full Court of the Federal Court said in National Retail
Association v Fair Work Commission:34
‘It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad
considerations which the FWC must take into account in considering whether a modern award
meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant
minimum safety net of terms and conditions. The listed factors do not, in themselves, however,
pose any questions or set any standard against which a modern award could be evaluated.
Many of them are broad social objectives. What, for example, was the finding called for in
relation to the first factor (“relative living standards and the needs of the low paid”)?
Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s
claim.
[2018] FWCFB 1691
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The relevant finding the FWC is called upon to make is that the modern award either achieves
or does not achieve the modern awards objective. The NRA’s contention that it was necessary
for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the
s 134(1) factors must be rejected.’35
[55] In Anglo American the Court also considered the expression ‘only to the extent
necessary to achieve the modern awards objective’ in s.138:
‘… The words “only to the extent necessary” in s 138 emphasise the fact that it is the minimum
safety net and minimum wages objective to which the modern awards are directed. Other
terms and conditions beyond a minimum are to be the product of enterprise bargaining, and
enterprise agreements under Pt 2-4’.36
[56] The modern awards objective is very broadly expressed37 and the matters which may
be taken into account are not confined to the s.134 considerations. As the Full Court of the
Federal Court observed in Shop, Distributive and Allied Employees Association v The
Australian Industry Group38 (Penalty Rates Review):
‘… What must be recognised, however, is that the duty of ensuring that modern awards,
together with the National Employment Standards, provide a fair and relevant minimum safety
net of terms and conditions itself involves an evaluative exercise. While the considerations in
s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum
safety net of terms and conditions”, they do not necessarily exhaust the matters which the
FWC might properly consider to be relevant to that standard, of a fair and relevant minimum
safety net of terms and conditions, in the particular circumstances of a review. The range of
such matters “must be determined by implication from the subject matter, scope and purpose
of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;
(1986) 162 CLR 24 at 39-40).’39
[57] In the context of the Review, variation of a modern award may be warranted if it is
established that there has been a material change in circumstances since the making of the
award, but the Commission’s power to vary the award is not conditional on it being satisfied
that there has been such a change in circumstances.40 For example, a modern award might be
found not to comply with the modern awards objective ‘where considerations, which were
extant but unappreciated or not fully appreciated on a prior review, are properly brought to
account.’41
[58] The modern awards objective is a composite expression which requires that modern
awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and
conditions’, taking into account the matters in ss.134(1)(a)-(h).42 As the Full Court observed
in the Penalty Rates Review:
‘… It is apparent that “a fair and relevant minimum safety net of terms and conditions” is
itself a composite phrase within which “fair and relevant” are adjectives describing the
qualities of the minimum safety net of terms and conditions to which the FWC’s duty relates.
Those qualities are broadly conceived and will often involve competing value judgments about
broad questions of social and economic policy. As such, the FWC is to perform the required
evaluative function taking into account the s 134(1)(a)-(h) matters and assessing the qualities
of the safety net by reference to the statutory criteria of fairness and relevance. It is entitled to
conceptualise those criteria by reference to the potential universe of relevant facts, relevance
being determined by implication from the subject matter, scope and purpose of the Fair Work
Act.
[2018] FWCFB 1691
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…
… As discussed “fair and relevant”, which are best approached as a composite phrase, are
broad concepts to be evaluated by the FWC taking into account the s 134(1)(a)-(h) matters and
such other facts, matters and circumstances as are within the subject matter, scope and purpose
of the Fair Work Act. Contemporary circumstances are called up for consideration in both
respects, but do not exhaust the universe of potentially relevant facts, matters and
circumstances’.43
[59] Fairness in this context is to be assessed from the perspective of the employees and
employers covered by the modern award in question. As the Full Court observed in the
Penalty Rates Review:
‘it cannot be doubted that the perspectives of employers and employees and the contemporary
circumstances in which an award operates are circumstances within a permissible conception
of a “fair and relevant” safety net taking into account the s.134(1)(a)-(h) matters.’44
[60] Finally, the expression ‘minimum safety net of terms and conditions’ in s.134(1) was
considered in 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail
Sectors), in which the Full Bench rejected the proposition that the reference to a ‘minimum
safety net’ in s.134(1) means the ‘least … possible’ to create a ‘minimum floor’:
‘the argument advanced pays scant regard to the fact the modern awards objective is a
composite expression which requires that modern awards, together with the NES, provide ‘a
fair and relevant minimum safety net of terms and conditions’. The joint employer reply
submission gives insufficient weight to the statutory directive that the minimum safety net be
‘fair and relevant’. Further, in giving effect to the modern awards objective the Commission is
required to take into account the s.134 considerations, one of which is ‘relative living
standards and the needs of the low paid’ (s.134(1)(a)). The matters identified tell against the
proposition advanced in the joint employer reply submission.’45
[61] We conclude our general observations about the modern awards objective by noting
that the nature of modern awards under the Act is quite different from the awards made under
previous legislative regimes.46 In times past awards were made in settlement of industrial
disputes. The content of these instruments was determined by the constitutional and
legislative limits of the tribunal’s jurisdiction, the matters put in issue by the parties (i.e. the
‘ambit’ of the dispute) and the policies of the tribunal as determined from time to time in
wage fixing principles or test cases. An award generally only bound the employers, employer
organisations and unions which had been parties to the industrial dispute that gave rise to the
making of the award and were named as respondents. Modern awards are very different to
awards of the past.
[62] Modern awards are not made to prevent or settle industrial disputes between particular
parties. Rather, the purpose of modern awards, together with the NES and national minimum
wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and
conditions of employment for national system employees (see ss.3(b) and 43(1)). They are, in
effect, regulatory instruments that set minimum terms and conditions of employment for the
employees to whom the modern award applies (see s.47).
[63] Nor are there named respondents to modern awards. Modern awards apply to, or
cover, certain persons, organisations and entities (see ss.47 and 48), but these persons,
organisations and entities are not ‘respondents’ to the modern award in the sense that there
were named respondents to awards in the past. The nature of this shift is made clear by s.158
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which sets out who may apply for a determination making, varying or revoking a modern
award. Under previous legislative regimes, the named respondents to a particular award
would automatically have the requisite standing to make such applications; that is no longer
the case.47
3. Family and Domestic Violence: The Evidence
[64] A list of evidence and submissions filed in the proceedings was attached to the August
2017 Statement. A list of expert reports and witness statements is set out below:
Exhibit ACTU B-1: Dr Peta Cox, Expert report by Dr Peta Cox, (Cox Report).48
Exhibit ACTU B-2: Dr Peta Cox, Supplementary report of Dr Peta Cox, (Cox
Supplementary Report).
Exhibit ACTU B-3: Dr Martin O’Brien, Expert report of Dr Martin O’Brien,
(O’Brien Report).49
Exhibit ACTU B-4: Dr Michael Flood, Expert report of Dr Michael Flood, (Flood
Report).50
Exhibit ACTU B-5: Dr Natasha Cortis, Women’s economic security and domestic
violence: the role of employment, employment support and employment
protection, (Cortis Report).51
Exhibit ACTU B-6: Professor Cathy Humphreys, Expert report of Professor
Cathy Humphreys, (Humphreys Report).52
Exhibit ACTU B-7: Witness Statement of Ms Marilyn Beaumont.53
Exhibit ACTU B-8: Witness Statement of Ms Michelle Jackson.54
Exhibit ACTU B-9: Witness Statement of Mr Mick Doleman.55
Exhibit ACTU B-10: Witness Statement of Mr Brad Gandy.56
Exhibit ACTU B-11: Witness Statement of Ms Emma Smallwood.57
Exhibit ACTU B-12: Witness Statement of Ms Julie Kun.58
Exhibit ACTU B-13: Witness Statement of Ms Bernadette Pasco.59
Exhibit ACTU B-14: Witness Statement of Ms Michele O’Neill.60
Exhibit ACTU B-15: Witness Statement of Mr Sunil Kemppi.61
Exhibit ACTU B-16: Ms Ludo McFerran, Expert report of Ludo McFerran:
Family and domestic violence and the workplace (McFerran Report).62
Exhibit ACTU B-17: Witness Statement of Ms Jocelyn Bignold.
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Exhibit ACTU B-18: Witness Statement of Ms Sandra Dann.
Exhibit ACTU B-19: Witness Statement of Ms Fiona McCormack.
Exhibit ACTU B-20: Witness Statement of Ms Samantha Parker.
Exhibit ACTU B-21: Witness Statement of Ms Jessica Stott.
Exhibit ACTU B-22: Witness Statement of Ms Karen Willis.
Exhibit ACTU B-23: Confidential.
Exhibit ACTU B-24: Confidential.
Exhibit ACTU B-25: Confidential.
Exhibit Pricewaterhouse Coopers (PwC) S-1: Witness Statement of Ms Debra
Eckersley.63
Exhibit Ai Group F-4: Witness Statement of Ms Jenni Mandel.64
[65] Based on a consideration of the evidence, the Majority Decision made the following
findings:
1. Family and domestic violence has a significant adverse impact on those who
experience such violence.65
2. While men can, and do, experience family and domestic violence, such violence is
a gendered phenomenon that disproportionately affects women.66
3. The effects of family and domestic violence are far reaching and extend beyond
the individual directly affected to their families and the general community.67
4. Family and domestic violence has a real and tangible impact on employees and
employers in the workplace.68
5. Employees who experience family and domestic violence often face financial
difficulties as a result, such as relocation costs or becoming a sole parent; and may
suffer economic harm as a result of disruption to workplace participation.69
[66] We agree with the above findings. The Majority were satisfied that ‘the circumstances
faced by employees who experience family and domestic violence require a special
response’.70 We accept and adopt that conclusion.
[67] This is a community issue and requires a community response. As the Council of
Australian Governments states in the ‘National Plan to Reduce Violence Against Women and
their Children’71 (the National Plan):
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‘Whilst there are many forms of violent behaviour perpetrated against women, domestic
violence and sexual assault are the most pervasive forms of violence experienced by women in
Australia, and require an immediate and focussed response’.
[68] While we adopt the findings set out above we do wish to say something further about
the extent of family and domestic violence and the pervasive nature of its impact.
[69] We first turn to the definition of ‘family and domestic violence’. There is no single
generally accepted definition, but at the core of family and domestic violence is the
perpetrator’s need to maintain control and dominance over the victim.72
[70] Dr Flood describes intimate partner violence or domestic violence as involving:
‘a systematic pattern of power and control exerted by one person against another, involving a
variety of physical and non-physical tactics of abuse and coercion, in the context of a current
or former intimate relationship.’73
[71] The definition of family and domestic violence was the subject of discussion during
the series of conferences of interested parties in October 2017. We deal with the outcome of
those conferences in more detail in Chapter 5. Here we simply note that the parties agreed
upon the following definition:
‘family and domestic violence means violent, threatening or other abusive behaviour by a
family member of an employee that seeks to coerce or control the employee and that causes
them harm or to be fearful.’
[72] As mentioned in the Majority Decision, family and domestic violence is a gendered
phenomenon which disproportionately affects women. Based on an analysis of the available
material, Dr Flood found that among those subjected to intimate partner violence, women are
more likely than men to:
be subjected to frequent, prolonged and extreme violence;
be sexually assaulted;
sustain injuries;
fear for their lives; and
experience other negative consequences, such as psychological harm. 74
[73] Domestic and intimate partner homicides represent the highest proportion of any
category of homicides in Australia. At least one woman a week is killed by a partner or
former partner.75 Family and domestic violence is the leading contributor to death, disability
and ill-health among Australian women aged between 15 and 44.
[74] The Australian Institute of Criminology reported that of the 2,631 homicide incidents
in Australia over a 10-year period (to 30 June 2012), 1,088 or 41 per cent were classified as
domestic/family homicides.76 Intimate partner homicides account for 23 per cent of all
homicides in Australia.77 The majority of victims of domestic/family homicides were female
and accounted for 75 per cent of victims in intimate partner homicides. The offenders were
usually male. 78
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[75] Within the category of domestic/family homicides, intimate partner homicides account
for 56 per cent of deaths. Children comprised the second most frequent group of victims,
accounting for 21 per cent of deaths.79
[76] The Personal Safety Survey (PSS) conducted by the Australian Bureau of Statistics
(ABS) collects information about the nature and extent of violence experienced by men and
women since the age of 15 years and their experience of violence in the 12 months prior to the
survey. The ABS has conducted the PSS on two occasions (2005 and 2012) and undertook the
Women’s Safety Survey in 1996. The design of each survey is similar but not comparable in
every way.
[77] The most relevant data for our purposes is the statistics in relation to partner violence.
Partner violence refers to any incident of sexual assault, sexual threat, physical assault or
physical threat by a current and/or previous partner. The term ‘partner’ in the PSS is used to
describe a person the survey respondent lives with, or lived with at some point, in a married
or de facto relationship. It includes a partner the survey respondent is living with at the time
of experiencing violence; or a partner the survey respondent is no longer living with at the
time of experiencing violence. The PSS also uses the term ‘intimate partner’ to describe a
‘partner’ as defined above or a boyfriend/girlfriend or date or an ex-boyfriend/ex-girlfriend.
[78] Dr Cox gave evidence about findings from the PSS.
[79] As to the prevalence of partner violence against women Dr Cox’s evidence, based on
PSS data, was as follows:
‘One in four women in Australia have experienced violence by an intimate partner they may
or may not have been living with (25.1% or 2,194,200) - approximately two-thirds of these
women have lived with the violent partner at some time (16.9% or 1,479,900).
Of women who have lived with their violent partner, most had experienced more than one
incident of violence. For instance, 73% of women who had experienced violence by a former
cohabiting partner reported that the violence occurred more than once: this is close to a million
women (925,100). Of these women who had experienced abuse more than once, 347,900
women reported having experienced abuse all or most of the time, with 197,200 reporting
abuse that had happened a little of the time.
One in fifty women in Australia experienced at least one incident of violence by an intimate
partner (including cohabiting and non-cohabiting) in the 12 months prior to the PSS survey
(2.1%, 186,900): when limited to cohabiting partner, this drops to 1.5% (132,500).
Women who have experienced male intimate partner violence represent two thirds of all
women who have experienced violence by a male.’80
[80] Family and domestic violence is ubiquitous. One in four women in Australia have
experienced such violence (or almost 2.2 million women). Family and domestic violence
affects not only those who suffer it, but the children who are exposed to it, extended families,
friends and work colleagues. The Majority and Minority Decisions addressed this evidence
and we do not propose to repeat that analysis.
[81] The PSS also produces data about the impact of family and domestic violence and
workplaces.
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[82] Chart 1 is based on data from the 2005 PSS and shows that most people who had
experienced violence since the age of 15 years, whether by a current or previous partner, were
employed.
Chart 181
Experience of violence by current/previous partner since the age of 15 years, by labour
force status, all persons
Note: Estimate of unemployed for those who experienced violence by current partner has a relative standard error of 25% to 50% and should
be used with caution.
[83] Chart 2 is based on data from the 2012 PSS and shows the proportion of females who
had experienced violence by a current partner since the age of 15 years, by frequency of
violence.
[84] Almost two-thirds (65.1 per cent) of females who had experienced current partner
violence since the age of 15 years reported that their current partner had been violent more
than once.
68.2
3.5
28.2
63.2
4.2
32.5
0
10
20
30
40
50
60
70
80
Employed Unemployed Not in labour force
Per cent
Current partner Previous partner
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Chart 282
Experience of violence by current partner since the age of 15 years, females, by frequency of
violence
Note: Estimate of all/most of the time for has a relative standard error of 25% to 50% and should be used with caution.
[85] The same data shows that around the same proportion of males who had experienced
current partner violence since the age of 15 years reported that their current partner had been
violent more than once. In addition, of those males who had experienced previous partner
violence since the age of 15 years, around a half reported that their previous partner had been
violent more than once. In comparison, 73.0 per cent of females who had experienced
previous partner violence since the age of 15 years reported that their previous partner had
been violent more than once.83
[86] Table 1 shows the number and proportion of males and females who took time off
work in the 12 months after the most recent incident of violence, by type of assault and
gender of perpetrator.
[87] This data does not identify the relationship of the perpetrator to the victim, so
family/domestic violence incidents cannot be determined.
[88] Males who had experienced assault since the age of 15 years were most likely to have
been physically assaulted by another male, and were more likely to take time off work relative
to other cases of violence.
[89] Females who had experienced assault since the age of 15 were most likely to have
been physically assaulted by a male, and were most likely to take time off work relative to
other cases of violence.
34.9
6.5
19.3
39.3
0
10
20
30
40
50
60
70
One incident More than one incident
Per cent
All/most of the time Some of the time A little of the time
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Table 184
Experience of assault since the age of 15 years, whether took time off work in the 12 months after the most
recent incident of violence by type of assault and gender of perpetrator
Took time off
work during the
12 months after
the most recent
incident(a)
Did not take time
off work during
the 12 months
after the most
recent incident(a)
Did not work
during the 12
months after the
most recent
incident(a)
Total persons who
experienced
assault(a)
'000 % '000 % '000 % '000 %
Males who have experienced assault since the age of 15(b)
Sexual assault by a male np **2.8 *59.1 81.7 np np 72.3 100.0
Sexual assault by a female **8.3 **6.4 107.2 82.1 *15.1 *11.6 130.6 100.0
Physical assault by a male 199.2 8.6 1,718.8 74.0 404.8 17.4 2,322.8 100.0
Physical assault by a female *47.5 *6.5 576.4 79.4 102.1 14.1 726.0 100.0
Females who have experienced assault since the age of 15(b)
Sexual assault by a male 93.2 10.9 453.7 53.2 306.0 35.9 852.8 100.0
Sexual assault by a female **2.1 **8.3 16.2 63.8 *7.1 *28.0 25.4 100.0
Physical assault by a male 238.6 13.9 968.9 56.5 508.8 29.6 1,716.3 100.0
Physical assault by a female 22.9 5.1 271.7 60.6 153.4 34.2 448.0 100.0
Note: *estimate has a relative standard error of 25% to 50% and should be used with caution.
**estimate has a relative standard error greater than 50% and is considered too unreliable for general use.
(a) Components are conceptually unable to be added together to produce an aggregated total about 'time off work'. Persons may have
experienced more than one of the four different types of assault and are included separately for each type they have experienced. As a
person's actions will differ depending on the type of violence they experience, conceptually it would be invalid to add together actions for all
of the different types of violence. For example, if a person had taken time off work for their most recent incident of physical assault by a
male but had not taken time off work for their most recent incident of sexual assault by a male, it is impossible to calculate an estimate of
whether or not time was taken off work for "violence" - as it both has and hasn't been.
(b) Excludes incidents that occurred more than 20 years ago.
[90] The emotional and personal costs of family and domestic violence cannot be
measured; but some of its effects can, including the impact on health and children, and the
employment and financial consequences. We wish to briefly canvass these effects below,
focusing on employment and financial consequences.
Impact on health
[91] The Victorian Health Promotion Foundation reviewed the health costs of violence in a
2004 report titled The Health Costs of Violence: Measuring the Burden of Disease Caused by
Intimate Partner Violence (VicHealth Report).85
[92] The VicHealth Report found that intimate partner violence is the leading contributor to
death, disability and ill-health in Australian women aged 15 to 44 in Victoria. Intimate partner
violence was also found to be more damaging to the health of women aged 15 to 44 than any
other well-known risk factors for chronic disease, including high blood pressure, obesity and
smoking.86
[93] Family violence can also exacerbate existing mental health problems and increase the
risk of subsequent depression.87
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Impact on children
[94] Children living with domestic violence have much higher rates of depression and
anxiety and trauma symptoms.88
Employment and financial consequences
[95] Women who are experiencing or have experienced domestic violence have a more
disrupted work history; are on lower personal incomes; have had to change jobs frequently;
and are more likely to be employed in casual and part-time work, than women with no
experience of violence.89
[96] The PSS has found that about 145,700 employed women took time off work as a result
of their most recent incident of physical assault by a male cohabitating partner. For employed
women who had been sexually assaulted by a male cohabitating partner, about 29,000 took
time off work as a result of their most recent incident. 90
[97] Dr Cox observed that the PSS confirmed that separation from a violent partner is
difficult, and is associated with an elevated risk of violence on separation, and with financial
hardship following separation.91 Two out of three women who left violent partners moved
away from their homes, and seven out of 10 women who left violent relationships reported
leaving behind property or assets.92
[98] As to the financial impact of such violence, Confidential Witness 1 gave evidence of
incurring legal costs of over $6,000 to prepare for one court attendance.93 Confidential
Witness 3 gave evidence that over the period of an abusive relationship that continued for
three years, she lost over $90,000.94
[99] Family and domestic violence may give rise to complex legal proceedings in multiple
jurisdictions. In her evidence, Ms Smallwood (a senior lawyer at Women’s Legal Services,
Victoria) provided an example of a ‘typical client’ who may have:
(a) children and property matters in the Federal Circuit Court, as well as urgent
interim applications in relation to the same proceedings;
(b) divorce proceedings in the Federal Circuit Court or Family Court;
(c) intervention order proceedings in the Magistrates’ Court;
criminal proceedings;
(d) Victim of Crime assistance proceedings; and
(e) debt issues that require resolution through the relevant agencies.95
[100] Such a client will have little control over the timing of these matters or how long they
will take to resolve. Court hearings will usually be during working hours and there is limited
flexibility with respect to hearing dates, which are set by the court.96
[101] Around 62 per cent of women who experienced domestic violence in the last 12
months were in paid work.97
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[102] Employment is an important pathway out of violent relationships. Sustained periods of
employment can provide financial security, independence, social networks and increased self-
esteem.98 This point is reinforced by the experiences of the ACTU confidential witnesses,
who each spoke about the different kinds of support they received from their employers at
various times.
[103] We conclude this Chapter by noting that a number of Australian studies have sought to
assess the aggregate cost of violence against women, particularly domestic violence. The
ACTU referred to the most recent report by PwC, A High Price to Pay – the Economic Case
for Preventing Violence Against Women99 (PwC Report). The PwC Report was submitted to
the Victorian Royal Commission into Family Violence in November 2015 and used data
based on the 2012 PSS.
[104] Two other reports are also relevant. KPMG prepared a report in conjunction with the
National Plan in 2009, The Cost of Violence Against Women and their Children100 (KPMG
Report), and Access Economics was commissioned by the Office of the Status of Women in
2004 to prepare The Cost of Domestic Violence to the Australian Economy101 (Access
Economics Report).
[105] Using an estimate of 470,309 women who experienced partner violence in the year
2014-15,102 the PwC Report found that the cost to the Australian economy of women
experiencing physical violence, sexual violence or emotional abuse by a partner is $12.6
billion. The PwC Report estimated the cost of lost productivity as a result of domestic
violence as $2.1 billion.103
[106] The Victorian Government, Royal Commission into Family Violence Report
summarised the findings of the three reports as follows:104
Report Scope Year Estimate
Access
Economics
Domestic violence (male and female
victims)
2002/03 $8.1 billion
KPMG Domestic violence against women and
children (excludes male victims) and non
domestic sexual assault (excludes male
victims)
2007/08
2021/22
$13.6
billion
$15.6
billion
PwC Partner violence – physical violence,
sexual violence or emotional abuse by
current or previous partner perpetrated
against women (excludes male victims)
2014/15 $12.6
billion
PwC All violence against women - physical
violence, sexual violence or emotional
abuse (by a partner) or stalking by any
person perpetrated against women
(excludes male victims)
2014/15 $21.6
billion
[107] In the following two Chapters we deal with the preliminary views expressed in the
Majority Decision.
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27
4. Accessing personal/carer’s leave - jurisdiction
[108] As related earlier, the Majority Decision expressed the preliminary view that
‘employees should be able to access paid personal/carer’s leave for the purpose of taking
family and domestic violence leave’.105
[109] The August 2017 Statement106 attached a list of issues to provide guidance to the
parties as to the matters to be addressed in written submissions on this preliminary view. The
first issue in relation to the proposed extension of the NES personal/carer’s leave entitlement
to family and domestic violence leave was jurisdictional:
‘Does the Full Bench have jurisdiction to extend the NES entitlement to personal/carer’s leave
to incorporate domestic violence leave?’
[110] Submissions on this issue were lodged by the ACTU, ACCI, AMIC, NatRoad and Ai
Group.
[111] The ACTU, ACCI, AMIC, NatRoad and Ai Group all submit that the Commission
does not have jurisdiction to provide for paid personal/carer’s leave under the NES to be taken
for reasons relating to family or domestic violence in circumstances not already covered by
the NES, albeit for varying reasons.
[112] The August 2017 Statement refers to the Background Paper prepared by Commission
staff, which identified key issues in the drafting of a family and domestic violence leave
model term and set out three proposed model terms for consideration. For the purpose of
considering the jurisdictional question, it is not necessary to settle these drafting issues. It
suffices to assume that any award term extending the paid personal/carer’s leave entitlement
to incorporate family and domestic violence leave, will entail an entitlement to take the leave
for reasons related to domestic violence in circumstances where there is no entitlement to take
the leave under the terms of the NES.
[113] Section 136(1) of the Act provides for terms that may or must be included in a modern
award, while s.136(2) prohibits the inclusion of certain terms in an award:
‘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).’
[114] Section 136(1) provides that a modern award must only include terms that are
permitted or required under ss.136(1)(a)-(d). In relation to s.136(1)(a), s.139(1)(h) in
Subdivision B of Division 3 of Part 2-3 of the Act, permits a modern award to include terms
about ‘leave, leave loadings and arrangements for taking leave’. As submitted by the
ACTU,107 s.139(1)(h) would encompass a term extending paid personal/carer’s leave to
incorporate family and domestic violence leave.
[115] Section 136(2) prohibits award terms that are proscribed by Subdivision D of
Division 3 of Part 2-3 of the Act or that contravene s.55. Subdivision D does not include any
relevant proscription. Consequently, a term extending paid personal/carer’s leave to
incorporate family and domestic violence leave could be included in a modern award if and
only if the term would not contravene s.55.
[116] Section 55 of the Act provides:
‘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;
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29
(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
(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.
Enterprise agreements may include terms that have the same effect as provisions of
the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the
same) effect as provisions of the National Employment Standards, whether or not
ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National
Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an
enterprise agreement includes terms permitted by subsection (4) or (5), then, to the
extent that the terms give an employee an entitlement (the award or agreement
entitlement) that is the same as an entitlement (the NES entitlement) of the employee
under the National Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not
so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES
entitlement apply, as a minimum standard, to the award or agreement
entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year,
the provisions of the National Employment Standards relating to the accrual and taking of paid
annual leave will apply, as a minimum standard, to 4 weeks of that leave.
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).’
[117] Section 55(2)(a) permits a modern award to include terms ‘expressly permitted’ by
Part 2-2 of the Act. In relation to personal/carer’s leave, Part 2-2 only expressly permits a
modern award to include terms providing for an employee to cash out paid personal/carer’s
[2018] FWCFB 1691
30
leave (s.101) and terms relating to the kind of evidence that an employee must provide in
order to be entitled to paid personal/carer’s leave or unpaid carer’s leave (s.107(5)).
[118] Section 55(2)(b) permits a modern award to include terms ‘expressly permitted’ by
regulations made for the purposes of s.127. We will return to s.55(2)(b) later. It suffices for
present purposes to note that, to date, no such regulations have been made.
[119] Consequently, an award term extending paid personal/carer’s leave to incorporate
family and domestic violence leave would not be permitted by s.55(2).
[120] Section 55(1) provides that a modern award must not ‘exclude’ the NES ‘or any
provision of’ the NES. However, s.55(4) permits an award to include certain ‘ancillary or
incidental’ terms and terms that ‘supplement’ the NES. Such terms do not contravene s.55(1)
(s.55(7)).
[121] It follows that an award term extending paid personal/carer’s leave to incorporate
family and domestic violence leave will contravene s.55 if it excludes the NES or any
provision of the NES within the meaning of s.55(1) and it is not a term permitted by s.55(4).
[122] The ACTU submits that a modern award term extending access to personal/carer’s
leave for purposes other than those provided for in the NES ‘potentially excludes … the
minimum NES entitlement to 10 days personal or carer’s leave’.108 Ai Group submits that
such an award term would exclude the minimum NES entitlement and contravene s.55(1).109
NatRoad makes a similar submission.110
[123] The NES comprise Divisions 3 to 12 of Part 2-2 of the Act (s.61(3)). Paid
personal/carer’s leave is provided for in Division 7 of Part 2-2.
[124] The Act contains no express definition of ‘paid personal/carer’s leave’. Section 96 of
the Act deals with the quantum and accrual of paid personal/carer’s leave and s.97 deals with
the taking of the leave:
‘96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to
10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues
progressively during a year of service according to the employee’s ordinary
hours of work, and accumulates from year to year.
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or
personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or
a member of the employee’s household, who requires care or support because
of:
(i) a personal illness, or personal injury, affecting the member; or
[2018] FWCFB 1691
31
(ii) an unexpected emergency affecting the member.
Note 1: The notice and evidence requirements of section 107 must be complied with.
Note 2: If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave
instead of taking unpaid special maternity leave under section 80.’
[125] Section 99 provides for payment for paid personal/carer’s leave:
‘99 Payment for paid personal/carer’s leave
If, in accordance with this Subdivision, an employee takes a period of paid
personal/carer’s leave, the employer must pay the employee at the employee’s base
rate of pay for the employee’s ordinary hours of work in the period.’
[126] Notice and evidence requirements for paid personal/carer’s leave are set out in s.107:
‘107 Notice and evidence requirements
Notice
(1) An employee must give his or her employer notice of the taking of leave under this
Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time
after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
Evidence
(3) An employee who has given his or her employer notice of the taking of leave under
this Division must, if required by the employer, give the employer evidence that
would satisfy a reasonable person that:
(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in
section 97; or
(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in
circumstances specified in subsection 103(1); or
(c) if it is compassionate leave—the leave is taken for a permissible occasion in
circumstances specified in subsection 105(1).
Compliance
(4) An employee is not entitled to take leave under this Division unless the employee
complies with this section.
Modern awards and enterprise agreements may include evidence requirements
(5) A modern award or enterprise agreement may include terms relating to the kind of
evidence that an employee must provide in order to be entitled to paid personal/carer’s
leave, unpaid carer’s leave or compassionate leave.
Note: Personal information given to an employer under this section may be
regulated under the Privacy Act 1988.’
[127] On its terms, s.97 permits an employee to take paid personal/carer’s leave for the
reasons specified in ss.97(a) and (b). On the assumption made earlier, any award term
extending paid personal/carer’s leave to incorporate family and domestic violence leave will
entail an entitlement to take leave in circumstances not covered by ss.97(a) and (b). Section
[2018] FWCFB 1691
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97 does not clearly prohibit an employee taking paid personal/carer’s leave in such
circumstances.
[128] However, s.107(3)(a) provides that an employee who has given notice of taking paid
personal/carer’s leave as required by s.107(1), must, if required by his or her employer,
provide the employer with evidence that would satisfy a reasonable person that the leave is
taken for a reason specified in s.97. This requirement would appear to be inconsistent with an
award term providing that paid personal/carer’s leave may be taken in circumstances not
covered by s.97.
[129] The Full Bench of the Commission in 4 Yearly Review – Alleged NES
Inconsistencies111 found that certain award terms inconsistent with s.91(1) of the Act
‘exclude[d] s 91(1) in the sense that in their operation they would negate the effect of the
subsection.’112
[130] Ai Group submits that an award term of the type envisaged would ‘partially negate the
effect’ of s.97 of the Act.113 Ai Group also submits that such an award term would ‘partially
negate the effect of’ the entitlement to 10 days’ paid personal/carer’s leave for each year of
service under s.96(1), because leave taken for reasons beyond those in s.97 ‘cannot be
legitimately considered “paid personal/carer’s leave”.’114 NatRoad makes a similar
submission.115
[131] The meaning of s.55(1) was considered by the Full Bench of the Commission in
Application by Canavan Building Pty Ltd116 (Canavan):
‘[36] Section 55(1) of the Act relevantly provides that an enterprise agreement “must not
exclude” the NES or any provision thereof. It is not necessary that an exclusion for the purpose
of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES
provision in express terms. On the ordinary meaning of the language used in s.55(1), we
consider that if the provisions of an agreement would in their operation result in an outcome
whereby employees do not receive (in full or at all) a benefit provided for by the NES, that
constitutes a prohibited exclusion of the NES. That was the approach taken by the Full Bench
in Hull-Moody. The correctness of that approach is also confirmed by the Explanatory
Memorandum for the Fair Work Bill 2009 as follows:
“209. This prohibition extends both to statements that purport to exclude the operation
of the NES or a part of it, and to provisions that purport to provide lesser entitlements
than those provided by the NES. For example, a clause in an enterprise agreement that
purported to provide three weeks' annual leave would be contrary to subclause 55(1).
Such a clause would be inoperative (clause 56).”’117
[Emphasis added and endnote omitted]
[132] In terms of the approach in Canavan, the submissions of the ACTU, Ai Group and
NatRoad outlined above amount to saying that the relevant ‘benefit provided for by the NES’
is: paid leave, all of which will be available to an employee to take for the purposes in s.97.
Axiomatically, that benefit is lost if the employee takes any of the leave for any other
purpose.
[133] If the relevant benefit under the NES is conceived of in those terms, then an award
term extending paid personal/carer’s leave to incorporate family and domestic violence leave
would, to paraphrase Canavan, in its operation result in an outcome whereby employees do
[2018] FWCFB 1691
33
not receive in full a benefit provided for by the NES and so would constitute a ‘prohibited
exclusion’ of the NES.
[134] The operation of the award term could be said to have this result because an employee
who utilised accrued paid personal/carer’s leave for reasons related to family or domestic
violence and not in circumstances covered by s.97, would have remaining to them a lesser
entitlement to take paid personal/carer’s leave in accordance with the NES than that provided
for by ss.96 and 97. The ACTU provides an example in its submission:
‘assume that a full-time employee is subject to domestic violence. She accesses three days of
her personal leave to move house and seek an intervention order against her former partner.
Later that year, she has the flu and takes four days off; her children then get sick and she needs
to stay at home with them for six days. Her minimum entitlement is to 10 days paid
personal/carer’s leave, but she is unable to receive the full benefit of the minimum entitlement
because her leave balance has been depleted by circumstances which would not otherwise
meet the criteria in s 97 of the FW Act.’118
[135] Section 55(4) permits a modern award to include terms that are ‘ancillary or incidental
to the operation of an entitlement of an employee under’ the NES and terms that ‘supplement’
the NES, but ‘only to the extent that the effect of those terms is not detrimental to an
employee in any respect, when compared to’ the NES.
[136] The Act does not specify what it means for a term to be ‘ancillary or incidental’ or to
‘supplement’ the NES for the purposes of s.55(4).
[137] The ACTU submits that ‘a term which expands the circumstances in which an
employee can access personal/carer’s leave does not sit comfortably with the ordinary
meaning of “ancillary or incidental to the operation of” s 97’ of the Act.119 The ACTU also
submits that, while the contrary is arguable, such a term is not supplementary to the NES.120
As we understand AMIC’s submission, AMIC submits that such a term cannot be considered
ancillary, incidental or supplementary within the meaning of s.55(4).121
[138] Commencing in March 2006, the Work Choices amendments122 to the then Workplace
Relations Act 1996 (Cth) (WR Act) introduced a set of statutory minimum employment
conditions for all national system employees, in the form of the Australian Fair Pay and
Conditions Standard (AFPCS).123 This marked a shift to the standardisation of leave
entitlements and to legislation rather than awards as the primary source of leave entitlements.
[139] Paid personal/carer’s leave arrangements under the AFPCS were similar to those
under the Parental Leave Test Case 2005,124 with ‘personal/carer’s leave’ being defined in
s.244 of the WR Act as follows:
‘244 For the purposes of this Division, personal/carer’s leave is:
(a) paid leave (sick leave) taken by an employee because of personal illness, or
injury, of the employee; or
(b) paid or unpaid leave (carer’s leave) taken by an employee to provide care or
support to a member of the employee’s immediate family, or a member of the
employee’s household, who requires care or support because of:
(i) a personal illness, or injury, of the member; or
(ii) an unexpected emergency affecting the member.’
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34
[140] The NES under the Act commenced in January 2010. Key provisions of the
personal/carer’s leave NES are reproduced earlier. Paid personal/carer’s leave entitlements
under the NES largely replicate those under the former AFPCS. In contrast to the AFPCS, the
NES does not cap the use of paid personal/carer’s leave for carer’s leave purposes, and casual
employees are entitled to unpaid compassionate leave.
[141] In its submission, Ai Group also notes the definition of personal/carer’s leave from
s.244 of the WR Act (above). Ai Group submits that:
‘It cannot be legitimately concluded that the Legislature intended the concept of
“personal/carer’s leave” to have a wider meaning [in the Act than] … it had under the WR Act,
given the historical context … and the absence of any indication of this in the Explanatory
Memorandum or other Parliamentary materials relating to the Fair Work Bill 2008.’125
[142] Ai Group further submits that:
‘Even though s.97 of [the Act] … is framed in terms of the circumstances when paid
personal/carer’s leave can be taken, in effect, the section sets out the meaning of paid
personal/carer’s leave in a similar manner to s.244 of the WR Act.’126
[143] Ai Group concludes that an award term extending paid personal/carer’s leave ‘to
include circumstances beyond those in s.97 … would be inconsistent with the meaning of the
term “paid personal/carer’s leave” in the Act.’127 Further, Ai Group considers it ‘obvious’
that such a term ‘would represent a major change in the safety net and hence could not be
legitimately considered … an ancillary or incidental term’.128 Ai Group submits that such a
term cannot ‘supplement’ the NES, as it is detrimental to an employee for the purposes of
s.55(4).129
[144] While the Act contains no express definition of paid personal/carer’s leave, the
historical concept is reflected in the description of the circumstances in which the leave may
be taken under s.97 of the Act. To extend paid personal/carer’s leave to incorporate family
and domestic violence leave might be considered such a significant change to the concept of
personal/carer’s leave, as to constitute the creation of a new form of leave. If so, it would
follow that an award term extending paid personal/carer’s leave to incorporate family and
domestic violence leave, could not be considered ‘ancillary or incidental to the operation of an
entitlement of an employee under’ the NES, or to ‘supplement’ the NES for the purposes of
s.55(4) of the Act.
[145] A number of parties also contend that an award term extending paid personal/carer’s
leave to incorporate family and domestic violence leave would be ‘detrimental to an employee
in any respect, when compared to’ the NES within the meaning of s.55(4).
[146] The ACTU submits that such a term would be detrimental to an employee for
essentially the same reason as outlined at [134] above.130 Ai Group makes a similar
submission131 and ACCI’s submission seems to be to the same effect.132
[147] The ACTU submits that the assessment as to whether an award term has a detrimental
effect is to be undertaken ‘by applying the Canavan test’ (see [131] above), and cites the Full
Bench in Australian Federation of Air Pilots v HNZ Australia Pty Ltd133 for that
proposition.134
[2018] FWCFB 1691
35
[148] ACCI draws attention to the words ‘detrimental to an employee in any respect, when
compared to’ the NES in s.55(4) of the Act (emphasis added), and submits:
‘69. Perhaps contrary to the notation in the section, these words should be read to provide
an absolute protection of the NES not just as a whole or in concept but in relation to
every individual element.
70. The words support the view that elements of the NES cannot be offset by an increased
benefit in one area outweighing a detriment in another.’135
[149] While ACCI’s second paragraph above accords with a literal reading of s.55(4), the
submission does raise an issue with the text of s.55. As perhaps ACCI is acknowledging in its
first paragraph, under such a reading it is not clear how the example of an ancillary or
incidental term given in paragraph (a) of Note 1 under s.55(4), would be permitted by s.55(4).
This example is of a term:
‘under which, instead of taking paid annual leave at the rate required by section 90, an employee
may take twice as much leave at half the rate of pay’.
[150] The difficulty is that this term might be said to operate to the detriment of an employee
in the respect of payment for annual leave, in comparison to s.90(1) of the NES (which
requires, when an employee takes a period of paid annual leave, that the employer pay the
employee at the employee’s base rate of pay).
[151] It is at least arguable that an award term extending paid personal/carer’s leave to
incorporate family and domestic violence leave would be detrimental to an employee in a
respect when compared to the NES. As submitted variously by the ACTU, Ai Group, ACCI
and NatRoad, that respect would be that an employee who utilised accrued paid
personal/carer’s leave for reasons related to domestic violence and not in circumstances
covered by s.97, would have remaining to them a lesser entitlement to take paid
personal/carer’s leave than that provided for by ss.96 and 97 of the Act.
[152] A contrary view might be put. It seems counterintuitive that lessening a restriction on
the circumstances in which an employee can take paid personal/carer’s leave, could operate so
as to deny the employee the full benefit of that leave. In the example at [134] above, the
employee chooses to take three days’ paid leave in circumstances related to domestic
violence, when, presumably, the only alternative would have been for the employee to seek
unpaid leave. If the employee is subsequently unable to take three days’ paid personal/carer’s
leave as a carer because her leave accrual has been exhausted, should that consequence be
considered a detriment to the employee, when the employee has had the full benefit of 10
days’ paid leave?
[153] The ACTU submissions also raised the possibility that an award term extending paid
personal/carer’s leave to incorporate family and domestic violence leave might require, or
permit employers to require, employees to utilise paid personal/carer’s leave for reasons
related to domestic violence in circumstances not covered by s.97.136 We have made no
assumption that such an award clause would operate in this manner. In any case, it does not
seem to us that employee choice is critical to the view put in the previous paragraph.
[2018] FWCFB 1691
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Conclusion
[154] As we have sought to demonstrate in our review of the submissions, the issues raised
are not without a degree of complexity.
[155] All of the submissions before us contend that the Commission does not have
jurisdiction to provide for paid personal/carer’s leave under the NES to be taken for reasons
relating to family and domestic violence in circumstances not covered by s.97. Different
reasons are advanced by the parties in support of that proposition.
[156] Given the unanimous position taken by the various parties we do not propose to act on
the preliminary view expressed in the Majority Decision at this stage and it is not necessary to
express any concluded views on the jurisdictional issue. However, we propose to revisit this
issue in the review envisaged in Chapter 6.
[157] In concluding, we note that ACCI submits that ‘[a]ny change to the NES entitlement
to expand conditions of access would require legislative change.’137 That submission is, with
respect, incorrect. Section 55(2)(b) of the Act permits a modern award or enterprise
agreement to include any terms that the award or agreement is ‘expressly permitted to include
… by regulations made for the purposes of section 127’ of the Act. Section 127 in turn
provides:
‘127 Regulations about what modern awards and enterprise agreements can do
The regulations may:
(a) permit modern awards or enterprise agreements or both to include terms that
would or might otherwise be contrary to this Part or section 55 (which deals
with the interaction between the National Employment Standards and a
modern award or enterprise agreement); or
(b) prohibit modern awards or enterprise agreements or both from including terms
that would or might otherwise be permitted by a provision of this Part or
section 55.’
[158] It follows that regulations could be made for the purposes of s.127 to expressly permit
modern awards, and enterprise agreements, to include a term which extends paid
personal/carer’s leave to incorporate family and domestic violence leave.
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5. Unpaid leave
5.1 The preliminary view
[159] As related earlier, the Majority Decision expressed the preliminary view that ‘all
employees should have access to unpaid family and domestic violence leave’.138
[160] In the subsequent proceedings a number of the Employer parties contended that we
should not introduce an unpaid family and domestic violence leave entitlement into the
modern award system. Ai Group advanced the following propositions in support of this
position:139
1. The provision of family and domestic violence leave is a matter appropriately
dealt with at the enterprise level, not in the award safety net.
2. In considering what constitutes a fair and relevant minimum safety net, it is not
appropriate for the Commission to prioritise some particular social concerns
(such as family and domestic violence) over others:
‘Prioritising family and domestic violence within leave entitlements necessarily
involves making a value judgment that the problem of family and domestic violence is
more pressing and deserving than the myriad of other social problems in society. This
is not the role of the Commission. The Commission is being asked to determine, for
example, that a victim of family and domestic violence is more deserving of leave
than a victim of a serious assault by a stranger. No probative evidence has been led in
the proceedings that might facilitate the making of such an assessment.’140
3. The creation of additional separate forms of leave is a matter for the NES, not
the modern award system.
4. The Act provides various forms of leave that can be accessed by employees
experiencing family and domestic violence, including annual leave and
personal/carer’s leave.
5. The Act provides various forms of protection to employees who are absent
from work due to family and domestic violence (including the unfair dismissal
and general protections regimes).
6. The modern award system provides employees with access to different forms
of flexibility in the event that they need to be absent from work due to family
and domestic violence, including time off instead of overtime, make up time
and the model flexibility clause.
7. The complexities associated with family and domestic violence render ‘the task
of formulating an entitlement to leave for the purposes of a minimum safety net
inherently difficult’.
[161] As to proposition 1, the Employer parties contend that the issue of family and
domestic violence is a matter better addressed through enterprise bargaining or workplace
level policies and procedures, rather than by ‘one size fits all’ modern award term.
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[162] In the earlier proceedings, Ai Group adduced evidence that analysed the Workplace
Agreements Database (WAD) in relation to terms dealing with family and domestic violence.
The WAD is a census database maintained by the Commonwealth Department of Jobs and
Small Business that provides information on developments in coverage, wage increases and
conditions of employment included in federal collective agreements.
[163] Ms Jenni Mandel, a Workplace Relations Adviser at Ai Group, provided a report
analysing enterprise agreements containing domestic/family violence provisions using the
WAD (Mandel Report).141
[164] According to Ms Mandel’s analysis, 1,149 current agreements (7.9 per cent) as at 30
June 2016 contained a provision dealing with domestic/family violence (not necessarily
providing for leave), covering 819,905 employees (37.8 per cent).142 These agreements
covered all 19 ANZSIC industries, with around one-third of the agreements in the ‘Health
care and social assistance’ industry.143 Almost three in 10 of the employees covered by these
agreements were in the ‘Education and training’ industry.144 Around four in five of these
agreements were in the private sector, covering 480,941 employees (almost 60 per cent).145
Over half of the agreements covered more than 100 employees.146 Around six in seven of the
agreements, covering 93.8 per cent of these employees, covered unions.147
[165] The Mandel Report also showed that 323 enterprise agreements (15 per cent) approved
in the first half of 2016 (up to 30 June) contained a provision dealing with domestic
violence:148
124 (around 38 per cent) contained paid domestic/family violence leave
entitlements;149
21 (6.5 per cent) contained unpaid domestic/family violence leave entitlements;150
and
115 (around 36 per cent) contained provisions allowing access to other forms of
leave for domestic/family violence purposes.151
[166] The 323 agreements covered all industries except Mining,152 with 90 of these
agreements in the ‘Health care and social assistance’ industry and 279 (86.4 per cent) in the
private sector.153 Almost half covered more than 100 employees154 and 253 (over three-
quarters) covered unions.155
[167] Ai Group observed that the evidence of Ms Mandel demonstrates that enterprise
bargaining has resulted in a number of enterprise agreements including provisions dealing
with family or domestic violence.156 Ai Group also observed that many agreements deal with
family and domestic violence differently, with some providing for more than the Amended
Claim and others less.157 Ai Group submitted that the evidence suggests that this matter is
capable of being dealt with at the enterprise level.158
[168] Ai Group submitted that the evidence of Ms Mandel showed that there has been an
increasing prevalence of provisions dealing with family and domestic violence in enterprise
agreements159 and that there is a correlation between the inclusion of family and domestic
violence provisions and business size.160
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[169] Ai Group argued that the ACTU has ‘advanced very little direct evidence’ that the
absence of family and domestic violence leave provisions in enterprise agreements
demonstrates ‘employer unwillingness’161 or a ‘widespread refusal to bargain’.162
[170] ACCI performed a search on the Commission’s website of enterprise agreements
containing the phrase ‘domestic violence’ and identified 1,222 enterprise agreements, of
which it reviewed 800.163 ACCI submitted from this review that the enterprise agreements
address domestic/family violence in different ways, including through access to:
employee assistance programs;
existing leave entitlements (e.g. annual and personal/carer’s leave);
cashing out of annual leave;
flexible working arrangements or individual flexibility arrangements;
leave at the employer’s discretion;
paid leave;
repatriation leave; and
unpaid leave.164
[171] ACCI submitted that this shows that ‘bargaining for these types of clauses is in its
infancy’ and that ‘employees and businesses have bargained for [a] variety of enterprise
specific entitlements tailored to the specific environment of those enterprises’.165
[172] ACCI submitted that domestic/family violence leave can and is bargained for through
enterprise bargaining,166 and that many enterprise agreements include domestic/family
violence leave entitlements in circumstances where such terms are not a feature of the
relevant modern award.167
[173] The ACTU adduced lay witness evidence from five union officials, who spoke of the
difficulty in bargaining in respect of family and domestic violence provisions.168
[174] The ACTU submitted that there are limitations on drawing conclusions from the
WAD, and that no conclusions should be drawn from the analysis of the 1,149 agreements
provided by Ms Mandel. The ACTU stated that a limitation of the WAD is its definition of a
‘current agreement’ as an agreement ‘that has not passed its nominal expiry date’.
Accordingly, all of the agreements in Ms Mandel’s analysis had nominal expiry dates on or
after 30 June 2016.169 However, pursuant to ss. 54 and 58 of the Act, an agreement remains in
operation until it is terminated or replaced by a new agreement.170 The ACTU contended that
there was no information to indicate that the agreements in Ms Mandel’s analysis were
representative of all enterprise agreements in operation as at 30 June 2016. Accordingly, ‘no
reliable conclusions can be drawn from Ms Mandel’s analysis of the 1,149 agreements at
paragraphs 10-25 of her statement that would be applicable to all operational enterprise
agreements’.171
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[175] The ACTU also submitted that there is no basis on which it could be contended that
Ms Mandel’s analysis of 323 enterprise agreements approved between 1 January and 30 June
2016 is representative of all enterprise agreements in operation in that period.172 The ACTU
submitted that during cross-examination, Ms Mandel could not confirm whether the two sets
of enterprise agreements were representative of all enterprise agreements in operation.173
[176] As to the prevalence of family and domestic violence provisions in enterprise
agreements, we accept that there is some force in the ACTU’s submissions as to whether the
agreements analysed by Ms Mandel can be viewed as representative of all agreements in
operation. The material before us does not establish that the types of clauses in current
agreements are representative of clauses found across all agreements in operation in terms of
their prevalence, content and context (i.e. industry, business size etc).
[177] It is clear that some employers and employees have successfully negotiated provisions
which seek to address family and domestic violence, and that there is significant variation in
these provisions. They include provision for:
paid family and domestic violence leave;
access to other leave entitlements (such as personal/carer’s leave);
unpaid leave;
a right to request flexible working arrangements; and
assistance for supporters and carers of people experiencing family and domestic
violence.
[178] It is also clear from the Mandel Report that family and domestic violence provisions
are found in agreements in most industries and involving employers of different size
(particularly large employers).
[179] However, as the Full Bench observed in the June 2015 4 yearly review of modern
awards – Annual leave decision:
‘we are conscious of the need to exercise care when assessing the provisions in enterprise
agreements in the context of a review of modern awards. Enterprise agreements are negotiated
by the parties and approved by the Commission against various statutory criteria. The
legislative context relevant to the review of modern awards is quite different.’174
[180] In our view, the evidence does not support the contention that the matter is better left
to enterprise-level negotiation. Family and domestic violence is a serious social issue that
impacts on employees and employers in the workplace.
[181] A relevant modern award term will provide a minimum safety net standard that will
underpin bargaining. There is no persuasive evidence before us that would lead us to conclude
that inserting a term providing unpaid family and domestic violence leave in modern awards
would have an adverse impact on the incentive to bargain in relation to this matter.
[182] In its second proposition at [160], Ai Group contends that it is not appropriate for the
Commission to prioritise family and domestic violence over other social issues. We disagree.
The Majority Decision concluded:
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‘While we also accept that there are other matters which might impact on employees in a
significant way we are satisfied that the evidence established that the circumstances faced by
employees who experience family and domestic violence require a special response.’ 175
[Endnotes omitted]
[183] In its third proposition, Ai Group contends that the creation of additional forms of
leave – such as unpaid family and domestic violence leave – is a matter for the NES, not the
modern award system. We note that during the course of oral argument Ai Group clarified
that the proposition put was simply a merit submission, rather than a jurisdictional argument.
[184] We reject that proposition. There is no sound basis for restricting the content of
modern awards in the manner contended. The Act expressly provides that modern awards
may include terms about ‘leave, leave loadings and arrangements for taking leave’
(s.139(1)(h)).
[185] In its fourth, fifth and sixth propositions, Ai Group contends that the current regulatory
framework – in the Act and modern awards – provides a range of protections for employees,
and in effect suggests that an award term providing unpaid family and domestic violence
leave is not necessary.
[186] We disagree. The same argument, in substance, was considered and rejected in the
Majority Decision.176 It may be accepted that employees experiencing family and domestic
violence will be able to access existing entitlements in some circumstances. But the existing
regulatory framework is not sufficient to address the myriad of circumstances facing
employees who experience family and domestic violence. For example, there is no existing
safety net entitlement permitting an employee to be absent from work on short notice to
address an urgent need to find accommodation so as to remove themselves from harm.
[187] We adopt the conclusion in the Majority Decision:
‘We are therefore, not satisfied that the existing entitlements meet the needs of employees who
experience family and domestic violence.’177
[188] The final proposition advanced by Ai Group – that it is inherently difficult to
formulate an unpaid family and domestic violence leave term – does not provide a sound basis
for not proceeding to give effect to the preliminary view. Indeed, as demonstrated by
subsequent events, the task of formulating a model term may be difficult, but it is far from
impossible.
[189] In conclusion, we confirm the preliminary view expressed in the Majority Decision
that all employees should have access to unpaid family and domestic violence leave. We later
address the modern awards objective and the matters we are required to take into account
(ss.134(1)(a)-(h)), but note here that for the reasons which follow, we are satisfied that the
variation of modern awards to include the model unpaid family and domestic violence leave
term is necessary to achieve the modern awards objective. We note that we have exempted
from this general finding the specific awards mentioned in [275], which will be the subject of
later proceedings.
[190] We now turn to consider the content of an unpaid family and domestic violence leave
model term.
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5.2 The model term
[191] The conferences of interested parties held on 13, 18, 19 and 20 October 2017 occurred
in the context of the preliminary views expressed in Majority Decision.
[192] In the event that we adhered to the view that there should be a model unpaid family
and domestic violence leave term, the conference parties reached agreement on most elements
of a model term, as set out below. All parties acknowledged that the proposed model term
represents a significant compromise of their respective preferred positions.
[193] For our part, the elements of the proposed model term identified as agreed will be
incorporated into the final model term, together with the two matters specified at [195] and
[196]. Issues that remained unresolved at the conferences relating to the leave entitlement are
discussed further at [197] onwards.
Family and Domestic Violence Leave Model Term
1 Definitions (Agreed)
1.1 In this [model term]:
family and domestic violence means violent, threatening or other abusive behaviour
by a family member of an employee that seeks to coerce or control the employee and
that causes them harm or to be fearful.
family member means:
(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of
the employee; or
(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto
partner of the employee; or
(c) a person related to the employee according to Aboriginal or Torres Strait
Islander kinship rules.
1.2 A reference to a spouse or de facto partner in the definition of family member
in clause 1.1 includes a former spouse or de facto partner.
2 Entitlement to unpaid family and domestic violence leave (Partial Agreement)
A number of matters concerning the extent of the entitlement remain in dispute:
● Is an employee entitled to unpaid leave for each occasion that satisfies
clause 3 and, if so, is there a limit on the number of days of unpaid leave that
can be taken on each occasion?
● Is the entitlement to be limited to a specified quantum of unpaid leave per
annum and, if so, what is that quantum?
● In relation to any specified quantum of unpaid leave entitlement:
Does the entitlement accrue progressively during a year of service or is it
simply an entitlement in each 12 month period?
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Does the entitlement accumulate from year to year?
How does the entitlement ‘work’ in relation to part-time employees?
Does the entitlement to take unpaid leave apply to casuals?
● Should an employee be required to exhaust other forms of leave (such as
personal/carer’s leave) before becoming entitled to unpaid family and
domestic violence leave?
In the event that the entitlement to unpaid family and domestic violence leave is limited to a
specified quantum of unpaid leave, then the following note is agreed:
Note: A period of family and domestic violence leave may be less than a day by agreement
between the employee and the employer.
3 Taking Unpaid Leave (Agreed)
An employee experiencing family or domestic violence may take unpaid family and
domestic violence leave if the employee needs to do something to deal with the
impact of the family and domestic violence and it is impractical for the employee to
do that thing outside their ordinary hours of work.
Note: The reasons for which an employee may take leave include making arrangements for their
safety or the safety of a family member (including relocation), attending urgent court hearings,
or accessing police services.
4 Notice and evidence requirements (Agreed)
Notice
4.1 An employee must give their employer notice of the taking of leave by the
employee under this [model term].
4.2 The notice:
(a) must be given to the employer as soon as practicable (which may be a
time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the
leave.
Evidence
4.3 An employee who has given their employer notice of the taking of leave under
this [model term] must, if required by the employer, give the employer
evidence that would satisfy a reasonable person that the leave is taken for a
purpose specified in clause 3.
Note: Depending on the circumstances such evidence may include a document issued by the
police service, a court or a family violence support service, or a statutory declaration.
5 Confidentiality (Agreed)
5.1 Employers must take steps to ensure information concerning any notice given
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or evidence provided under clause 4 is treated confidentially, as far as it is
reasonably practicable to do so.
5.2 Nothing in this clause prevents an employer from disclosing information
provided by an employee if the disclosure is required by an Australian law or
is necessary to protect the life, health or safety of the employee or another
person.
Note: Information concerning an employee’s experience of family and domestic violence is
sensitive and if mishandled can have adverse consequences for the employee.
Employers should consult with such employees regarding the handling of this
information.
6 Compliance (Agreed)
An employee is not entitled to take leave under this [model term] unless the employee
complies with this [model term].
[194] Two further matters were agreed during the conferences on 19 and 20 October 2017.
[195] First, in the event that we determined it was appropriate to express the unpaid leave
entitlement in terms of a specified number of days per annum (as opposed to the ACTU’s
position that unpaid leave be available on a per occasion basis) it was generally agreed that a
note be inserted in the model term to the effect that an employer and employee may agree to
an additional period of unpaid leave.178
[196] Second, in relation to the effect of taking unpaid leave pursuant to the model term, it
was generally agreed that s.22 of the Act would apply. In short; the period of unpaid leave
taken by an employee would not count as service for the purpose of any other leave
entitlements, but such unpaid leave would not break the employee’s continuity of service.179
[197] We now turn to the major issue in contention; the amount of the leave entitlement.
[198] The ACTU’s primary submission is that unpaid family and domestic violence leave
should be available on an uncapped, per occasion basis. Two main arguments are advanced in
support of this submission.180
[199] First, the requirement for such leave is varied and unpredictable. As counsel for the
ACTU puts it:
‘This position is justified by reference to the following matters. Family and domestic violence
leave should be available to enable affected employees to take necessary steps to ensure their
safety and wellbeing without putting their employment at risk. A person's need for leave in
these circumstances can be unpredictable and varied and it is important that there is sufficient
flexibility to enable the employee to take time off as they need.’181
[200] Second, there are comparable provisions in the Act that provide for unpaid leave on a
per occasion basis, namely:
unpaid special maternity leave (s.80);
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unpaid carer’s leave (s.102);
compassionate leave for casuals (s.104);
community service leave (ss.108-110).182
[201] The Employer parties are opposed to the ACTU proposal for reasons including:
the difficulty of ‘localising the notion of “the occasion”, giving rise to the
entitlement to unpaid leave’; 183 and
that it fails to strike a reasonable balance between the interests of employees and
employers. The Employer parties submit that the proposal effectively confers an
unlimited entitlement on employees, and note that employee absences,
particularly at short notice, can be disruptive, especially for small businesses. The
Employer parties submit that the proposal would be contrary to the efficient and
productive performance of work (s.134(1)(d)) and would have a detrimental
impact on business (s.134(1)(f)).184
[202] In our view, it is appropriate that we take a cautious approach to determining this
issue, given that we are dealing with the parameters of a new entitlement to unpaid leave in
circumstances where there is considerable uncertainty about the likely utilisation of the
entitlement.
[203] The NES provides for unpaid leave on an uncapped per occasion basis in certain
circumstances. But those circumstances are relatively confined. For example, casual
employees are entitled to two days’ unpaid compassionate leave for each ‘permissible
occasion’ - defined as being when a member of the employee’s immediate family or
household:
‘ (a) contracts or develops a personal illness that poses a serious threat to his or her life; or
(b) sustains a personal injury that poses a serious threat to his or her life; or
(c) dies.’ 185
[204] In the present circumstances, we are not persuaded that the provision of an uncapped
per occasion entitlement is appropriate. The model term should specify the maximum annual
entitlement to unpaid leave. A specified annual entitlement will also give businesses greater
certainty about the extent of their obligations.
[205] The next issue is the quantum of such an annual entitlement. In the event that we
rejected its primary position, the ACTU submitted that it would be appropriate to determine
an annual entitlement of 20 days’ unpaid leave, on the basis that this would meet the needs of
employees experiencing particularly severe and life threatening family and domestic violence
who require time away from work to make arrangements for their safety and the safety of
their children.186 The ACTU acknowledged that it was unlikely that the majority of affected
employees would require 20 days’ leave per annum.187
[206] Ai Group advocated a cautious approach and submitted that unpaid leave should be
limited to two days per annum which, it submitted, aligned with other relevant entitlements
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such as unpaid carer’s leave and compassionate leave.188 MEA submitted that a maximum of
two days’ unpaid leave per occasion would be appropriate.189 AMIC submitted that
employees should only be granted one day of unpaid leave or alternatively, no more than two
days’ unpaid leave.190
[207] ACCI submitted that two to three days per annum would be an appropriate quantum of
unpaid leave.
[208] ACCI noted that the Commission could seek guidance from the unpaid leave
entitlements in the NES191 including: unpaid carer’s leave; unpaid parental leave; community
service leave; jury service leave; unpaid special maternity leave; unpaid no safe job leave, and
unpaid pre-adoption leave. ACCI submitted that statutory unpaid leave was overwhelmingly
limited in quantum and the purpose for taking the leave was clearly defined and was triggered
by a specific event or cause.192 ACCI noted that these leave types did not accrue, were event-
driven and that leave was not available if some other form of leave was available and the
employer directed that leave to be taken.193 Australian Business Industrial and the New South
Wales Business Chamber and the Pharmacy Guild of Australia adopted and supported
ACCI’s submissions.194
[209] NatRoad’s primary submission was that there should be no entitlement to unpaid
family and domestic violence leave in either the Road Transport and Distribution Award
2010 or the Road Transport Long Distance Award 2010,195 but in the alternative, submitted
that the quantum of leave should be at the ‘lower end of the spectrum’.196
[210] We accept ACCI’s contention that reference to the NES can provide guidance in
framing the content of the unpaid family and domestic violence leave model term. The ‘notice
and evidence’ requirements in the model term draw heavily from the NES (see ss.80(2)-(5);
85(4)-(6); 107 and 110). But the quantum of the unpaid leave entitlements in the NES provide
little assistance in determining the quantum in the model term. This is because the NES
usually provides for unpaid leave on a ‘per occasion’ basis, as opposed to the annual limit to
be prescribed in the model term.
[211] For example, s.102 provides an entitlement of ‘2 days of unpaid carer’s leave for each
occasion (a permissible occasion)’ (as defined in s.102). Plainly there may be more than one
‘permissible occasion’ in a 12 month period; indeed there is no annual cap on the entitlement
to unpaid carer’s leave.
[212] Similarly, s.104 provides an entitlement to ‘2 days of compassionate leave for each
occasion (a permissible occasion)’. Compassionate leave is provided as paid leave for
employees other than casuals; casuals have an entitlement to unpaid compassionate leave.
[213] Some parts of the NES provide an entitlement to unpaid leave in defined
circumstances, with no limit on the amount of unpaid leave that may be taken. For example,
Division 8 of Part 2-2 of the Act provides for unpaid community service leave. Types of
‘eligible community service activity’ covered are: jury service; voluntary emergency
management activity, and activities prescribed by the regulations197 (s.109(1)).
[214] Section 108 provides that employees who engage in ‘eligible community service
activity’ are entitled to be absent from their employment ‘for a period’ if, among other things:
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‘(b) Unless the activity is jury service – the employee’s absence is reasonable in all the
circumstances.’
[215] Hence, the relevant limitation on the amount of unpaid leave for a community service
activity (other than jury service) is that it be ‘reasonable in all the circumstances’. There is no
limit on the extent of the absence if it relates to jury service.198
[216] It follows that, contrary to some of the Employer parties’ submissions, the NES
provisions relating to unpaid personal/carer’s and unpaid compassionate leave provide no
support for the proposition that the model term should limit the entitlement to two days’
unpaid leave per annum.
[217] During the course of oral argument,199 Ai Group referred to a report by Breckenridge
et al titled Implementation of domestic violence clauses – an employer’s perspective200 (the
‘Breckenridge Report’) in support of its contention that the entitlement in the model term be
limited to two days’ unpaid leave per annum. The Breckenridge Report was prepared by the
Gendered Violence Research Network at the University of New South Wales; was cited in the
submissions of the Australian Human Rights Commission and the ACTU in these
proceedings,201 and is one of the reports listed in the Research Reference List.
[218] The ACTU summarises the Breckenridge Report as follows:
‘In November 2014, the School of Social Sciences at the University of New South Wales,
investigated the implementation of domestic violence clauses in select industrial instruments in
order to analyse the effects. This included analysing the number of requests for family violence
leave. The UNSW Report showed that 35.3 per cent of employers had received a request for
family violence related leave in the past 12 months. In other words, 64.7 per cent of employers
covered by agreements with domestic violence had no family violence related leave requests.
Of those that had requests, the average time off for paid leave in the past 12 months was 43
hours (ranging between 8 and 202 hours). The average time off for unpaid leave was in the
past 12 months was 19 hours (ranging between one and 65 hours).202 The UNSW Report also
found that the most typical period of leave requested was two to three days (40 per cent),
followed by 25.7 per cent of one day or less, 11.4 per cent of one week or more and 22.9 per
cent indicated there was no pattern.
In summary, the UNSW Report showed that where employers have implemented family
violence entitlements, the number of employees who access the leave, and the number of days
those employees request as leave, is low. Further, none of the organisations that participated in
the survey reported any significant financial cost associated with family violence leave.’203
[219] The ACTU accurately summarises the Breckenridge Report. Table 2 from the
Breckenridge Report is included below as Table 2:
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Table 2
Domestic Violence Clauses and Leave
[220] The survey which is the subject of the Breckenridge Report sought to collect
qualitative and quantitative data from a potential sample of 450 workplaces that have family
and domestic violence leave entitlements ‘in their workplace agreements, awards or
directives.’204
[221] Table 2 above reports the responses to a question put to survey respondents about their
perceptions of the amount of time off (paid and unpaid) that was provided to individuals who
requested leave under the family and domestic violence clause applicable to their
organisation. The Breckenridge Report summarises the responses as follows:
‘They reported that the average time off for paid leave in the past 12 months was 43 hours and
ranged from 8 to 202 hours. In contrast, the average amount of unpaid leave reported in the
past 12 months was 198 hours, and ranged from 1 to 912 hours. However, this large number
was influenced by one extreme outlier where a respondent reported 912 hours of unpaid leave,
and the removal of this extreme case lowered the average time for unpaid leave to 19 hours
(ranging from 1 to 65 hours). In other words, the average time off for unpaid leave was just
under half of the average time off for paid leave reported by the respondents.’205
[222] While it is not clear from Table 2, it appears that the data on the ‘typical amount of
leave taken’ refers to the leave taken per incident, not the amount of leave taken per annum.
This explains the discrepancy between the ‘hours of leave requested in the past 12 months’
and the fact that the typical amount of leave taken was one to three days (i.e. 65.7 per cent
reported ‘1 day or less’, or ‘2 to 3 days’). So much is clear from the following statement in the
Breckenridge Report, under the heading ‘Key Learnings and Future Directions’:
‘ In terms of the typical amount of leave requested per incident, just under half of
the respondents indicated that employees typically requested two-to-three days
(40%; n=14).’206 [Emphasis added]
[223] Four observations may be made about the findings of the Breckenridge Report.
Workplace DV clause in operation % n More than 12 months 76.2 77 Less than 12 months 23.8 24 DV leave requested in past 12 months % n Yes 35.3 36 No 64.7 66 Hours of leave requested in past 12 months Mean SD Paid (n=31) 42.8 42.1 Unpaid (n=24) 19.3 30.6 Typical amount of leave taken % n 1 day or less 25.7 9 2 to 3 days 40.0 14 1 week or more 11.4 4 No pattern 22.9 8
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[224] First, the average number of hours of unpaid leave requested in the past 12 months
was 19.3 hours (or over two days), with survey responses ranging from one to 65 hours.
[225] Second, the typical (i.e. 40 per cent of respondents) amount of leave taken per incident
was two to three days.
[226] Third, the Breckenridge Report does not differentiate between survey responses on the
basis of whether the workplace provides both paid and unpaid leave, or only unpaid leave.
Hence, the responses on unpaid leave may under-report the extent of the total leave taken in
circumstances where an enterprise provides both paid and unpaid leave. The Breckenridge
Report states that the average number of paid hours requested over the past 12 months was
42.8 hours (over five days).
[227] Finally, the results may be affected by the characteristics of the industries in which the
survey respondents operate (that is, if the relevant industries employ predominately female
employees then the results may not be representative of the utilisation of such leave across the
entire labour force). Unfortunately, the information provided in the Breckenridge Report does
not enable us to reach any conclusions in that regard.207
[228] The above observations do not support Ai Group’s contention that the entitlement in a
model term should be limited to two days’ unpaid leave per annum. This is because the
Breckenridge Report concludes that the typical extent of leave taken per incident is two to
three days. Further, based on the evidence before us some employees experiencing family and
domestic violence will experience more than one such incident in a 12 month period.208
[229] We note that there is other evidence before us reflecting the experience of individual
employers and employees. ACCI took us to some of that evidence during the course of
closing oral argument,209 including Ms Eckersley’s evidence regarding the experience of
PwC.
[230] PwC’s ‘Family and Domestic Violence and Sexual Assault Support Policy’ provides
up to 10 days’ paid leave per financial year ‘to attend medical or support services,
appointments, counselling, police appointments, legal proceedings, arrange to relocate and/or
engage in other activities related to the effects of family and domestic violence or sexual
assault’.210
[231] In the course of oral argument, ACCI referred to the following extract from Ms
Eckersley’s cross-examination:
‘Mr Arndt: Up to 10 days, and that's the guaranteed leave amount. There's some discretion in
the PWC policy to go further but it's a 10 day entitlement?
Ms Eckersley: Yes we don't use language like "guaranteed" but it is up to 10 days if people - if
we believe - yes, when someone discloses to us, then it's up to 10 days. Yes, I'm drawing that
distinction because as I said of our current cases, if you like, there has been some leave but it
hasn't been a full - it's not necessarily the full 10 days. So there has been people - there have
been people take two days.’211
[232] ACCI submitted that the ‘gist’ of this part of Ms Eckersley’s evidence was that PwC’s
actual experience of the amount of leave taken pursuant to their policy was two days.212 We
disagree; that is not Ms Eckersley’s evidence. Ms Eckersley was responding to the
[2018] FWCFB 1691
50
proposition that the PwC Policy provided for an entitlement to 10 days’ paid leave. She was
not being asked about PwC’s experience of employee’s accessing the policy. In reply to the
question put, Ms Eckersley simply observed that some employees have accessed the leave
entitlement, though ‘not necessarily the full 10 days’ and that there have been employees who
have taken two days. The answer to the next question put to Ms Eckersley supports the
proposition that she was not saying the average utilisation was two days and employees had
not accessed the full entitlement:
‘Mr Arndt: So the full scope of the policy hasn't been necessary as yet?
Ms Eckersley: I'm going to decline to answer that on the basis of the confidentiality.’213
[233] We also note that during the course of her examination in chief, Ms Eckersley said that
PwC had received five requests to access a combination of leave and other support under the
PwC Policy.214 However, as noted by Ms Eckersley in her statement, there may be other
factors which explain the low level of utilisation of the entitlement:
‘I also suspect, but have no way of knowing, that some staff experiencing family and domestic
violence or sexual assault may have made no mention of what they were experiencing, and
instead found it easier to just take other forms of leave, like annual leave or personal carer’s
leave, or just resign than disclose the reason for absences or diminished performance.’215
[234] It seems to us that evidence of the experience of individual employers and employees
in utilising an entitlement to family and domestic violence leave needs to be treated with some
caution. Their experience is no doubt reflective of the workplaces concerned, the extent of
other leave entitlements and their personal circumstances. While useful, such evidence is
indicative or anecdotal only and cannot be extrapolated to the labour force generally.
[235] Having regard to the evidence about the impact on employees of family and domestic
violence; the indicative evidence of the utilisation of existing family and domestic violence
leave entitlements, and the parties’ submissions, we are of the view that five days’ unpaid
leave per annum represents a fair and relevant minimum safety net entitlement.
[236] Having determined the quantum issue, we now turn to consider some related issues:
Does the entitlement accrue progressively during a year of service or is it simply
an entitlement in each 12 month period?
Does the entitlement accumulate from year to year?
How does the entitlement apply to part-time employees?
Does the entitlement apply to casual employees?
[237] It is convenient to deal with the last issue first. The preliminary view in the Majority
Decision was that ‘all employees should have access to unpaid family and domestic violence
leave’. Consistent with the preliminary view, the ACTU submitted that casuals should have
an entitlement to unpaid family and domestic violence leave, arguing that there was no sound
reason to deny them a right to be absent for the purposes of attending to matters associated
with family and domestic violence.216
[238] There were a range of views among the Employer parties.
[2018] FWCFB 1691
51
[239] Ai Group’s primary submission was that casual employees should not be entitled to
unpaid family and domestic violence leave. Ai Group advanced the following argument in
support of its primary position:
‘Such employees receive a casual loading to compensate for the fact that they are not entitled to
most forms of leave that apply to full-time and part-time employees’.217
[240] NatRoad similarly opposed casual employees having an entitlement to unpaid leave218
and argued that casual employees generally had a right to refuse work and that the casual
loading compensated for the lack of entitlement to most forms of leave.219
[241] In the event that its primary submission was not accepted, Ai Group argued that access
to unpaid leave should be restricted to ‘long term’ casuals (as it is in s.67). A long term casual
employee is defined in s.12:
‘a national system employee of a national system employer is a long term casual employee at a
particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic
basis for a sequence of periods of employment during a period of at least 12
months.’
[242] During the course of closing oral argument, Ai Group advanced the following
submission in support of its alternative position:
‘That proposal in one sense strikes a middle ground that we say is much more workable. Our
primary position is that all casuals should be exempt, as I said it's a radical step to start
introducing leave for casuals into the award but - and we say unwarranted but this would be a
more modest compromised position.’220
[243] ACCI does not oppose unpaid family and domestic violence leave being available to
casual employees, noting that such an outcome was consistent with access to unpaid leave in
the NES.221
[244] AMIC submitted that in-principle it opposed casual employees being entitled to any
unpaid family and domestic violence leave,222 but that if unpaid leave were to be granted, it
should be limited to regular and systematic casual employees.223 MEA also submitted that
casual employees who are engaged on a regular and systematic basis should be able to access
unpaid family and domestic violence leave, consistent with a casual employee’s entitlement to
compassionate leave and unpaid carers’ leave.224
[245] We have decided that the model term entitlement to five days’ unpaid family and
domestic violence leave will apply to all employees. We make two points in this regard.
[246] First, in the NES unpaid leave entitlements generally apply to ‘all employees’;
whereas NES paid leave entitlements are restricted to ‘employees (other than casuals)’. As
mentioned earlier, reference to the NES can assist in providing guidance in framing the
content of the model term.
[2018] FWCFB 1691
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[247] Second, 51 per cent of award-reliant female employees are employed on a casual
basis,225 hence to exclude casuals from the scope of the model term would mean that a
significant proportion of the employees most likely to need the protection of a minimum
safety net entitlement to family and domestic violence leave would not be entitled to access
the entitlement.
[248] We also observe that the proposition advanced by Ai Group and others based on the
casual loading is without merit. In no sense could the casual loading be said to compensate
casual employees for the fact that they would not have an entitlement to five days’ unpaid
leave under the model term. So much is clear from an analysis of the decisions which have set
the casual loading at 25 per cent.226
[249] We now turn to the remaining three questions relating to quantum set out at [236]. To
some extent these issues are interrelated, and the positions of the respective parties were
dependent on the quantum of unpaid leave that was determined.
[250] For example, Ai Group’s position as to whether the entitlement should apply pro-rata
to part-time employees depended on the quantum of the entitlement – if, for example, the
standard was 10 days’ unpaid leave then this should apply to part-time employees on a pro-
rata basis, but if we accepted Ai Group’s position of two days’ unpaid leave there would be
no need to pro-rata the entitlement.227
[251] ACCI advanced a similar submission as to whether the entitlement accrues
progressively during the year or whether it is available, in full, upon commencement:
‘My clients didn't get particularly hot under the collar about the process of accumulation. It
seemed to follow that if it is something in the order of three days the grant being available
upon the commencement of employment really doesn't cause a lot of problems.
It is also the case that some of the other grants of unpaid leave appear to be available at the
commencement of employment, and again relying heavily on some of the NES propositions in
our submissions we really didn't think that an elaborate accumulation process was necessary in
the context of the three days we advanced.’228
[252] In considering whether to provide for accrual and pro-rata entitlements we are also
concerned to ensure that the model term is simple and easy to understand. It is, as Ai Group
put it, a ‘balancing act’.229
[253] In seeking to strike an appropriate balance we have decided that the unpaid leave
entitlement:
will be available in full at the commencement of each 12 month period rather than
accruing progressively during a year of service;
will not accumulate from year to year; and
will be available in full to part-time and casual employees (i.e. not pro-rated).
[254] This is consistent with our view that the purpose of the unpaid leave entitlement is to
enable employees to be absent from work when they need to do something to deal with the
impact of family and domestic violence. It is not a reward for service (such as annual leave),
but a needs-based entitlement (similar to unpaid carer’s leave in s.102).
[2018] FWCFB 1691
53
[255] We also note that this approach is broadly consistent with the treatment of unpaid
leave entitlements in the NES.
[256] We now turn to the remaining contested issue: the interaction between the new
entitlement to unpaid family and domestic violence leave and other forms of leave.
[257] The ACTU contended that there should be no requirement for employees to utilise any
available paid leave entitlements before accessing unpaid family and domestic violence
leave.230 In support of that contention, the ACTU submitted:
the term sought is unnecessary as award-reliant workers are low paid and are unlikely to
take unpaid leave if paid leave is available;
any such request will reduce the employee’s entitlement to annual and personal/carer’s
leave ‘meaning that women in particular will have less access than their male
counterparts to leave for illness and leisure’;231
comparable unpaid leave provisions in the NES do not require employees to take paid
leave even when it is available (see s.80, unpaid special maternity leave);
requiring an employee to first access their paid leave entitlements is ‘likely to cause
confusion which of course tells against the need for a simple and easy to understand
modern award system, and this is because the effect of family and domestic violence on
an employee cannot easily be compartmentalised between personal injury or illness on
one hand and non-personal injury matters on the other’.232
[258] The Employer parties generally contend that unpaid family and domestic violence
leave should not be available if the employee is able to access paid personal/carer’s leave. As
ACCI puts it:
‘The general guidance from the Act supports the view that an employee should not take unpaid
leave when another form of paid leave is available; in this case personal/carer’s leave which
could be triggered in many circumstances involving domestic violence.’233
[259] Ai Group makes a similar point, noting that it is consistent with the approach in
s.103(3) regarding access to unpaid carer’s leave.234
[260] ACCI made an additional point during the course of closing oral argument:
‘Our real problem though is this; if you're going to say that you can now take these, in our case
three unpaid days, as what is in effect personal leave or carer's leave this case becomes a very
different case. This all of a sudden is a case which says an employee should have more
personal leave and carer's leave rather than the case about domestic violence per se. Domestic
violence or an occasion of domestic violence obviously is the motivating factor, but you would
actually be saying we have made a positive decision to supplement the National Employment
Standard for personal carer's leave and allow people additional unpaid personal carers leave,
but for a particular reason.’235
[261] As a practical matter, we think that award-reliant employees are likely to access any
available paid leave entitlements before utilising an entitlement to unpaid family and domestic
violence leave. But we are not persuaded that we should mandate such an approach.
[2018] FWCFB 1691
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[262] In our view, the Employer parties’ reliance on the NES unpaid carer’s leave
entitlement is misplaced. We note that an employee is entitled to two days’ unpaid carer’s
leave for each permissible occasion, subject to s.103(3):
‘(3) An employee cannot take unpaid carer's leave during a particular period if the employee
could instead take paid personal/carer's leave.’
[263] But two things should be noted about the NES entitlement to unpaid carer’s leave.
[264] First, the NES provides an entitlement to paid carer’s leave in the same circumstances
in which there is an entitlement to unpaid carer’s leave (compare ss.97(b) and 102). In
contrast, the model term provides for unpaid leave in only a limited subset of circumstances in
which paid personal/carer’s leave would be available.
[265] Second, the NES unpaid carer’s leave entitlement is two days ‘for each occasion’.
There is no annual cap on the NES entitlement to unpaid carer’s leave (unlike the position
under the model term).
[266] We accept that there is some force in ACCI’s submission that not requiring employees
to first access any paid personal/carer’s leave entitlement will amount to supplementing the
NES, by allowing employees to access additional unpaid personal/carer’s leave, but for a
particular reason. We have taken the submission into account, but we are not persuaded that a
term requiring employees to access other paid leave entitlements before utilising an
entitlement to unpaid family and domestic violence leave is necessary, given that in practice
employees are likely to access paid leave entitlements first in any event.
[267] To require employees to access any paid personal/carer’s leave entitlement before
accessing unpaid family and domestic violence leave will also introduce an unwarranted
degree of complexity into the award term.
[268] We also accept that such a provision is likely to have, as the ACTU submits, a
detrimental impact on women.
[269] We have determined all of the contested issues in relation to the unpaid family and
domestic violence leave model term. We will finalise the drafting of the model term in the
coming weeks. The substantive content of the model term is known now, as the final version
will be based on the agreed terms and the issues we have determined. We now turn to
consider whether such a model term is a ‘permitted term’ and whether the inclusion of such a
term in modern awards is necessary to achieve the modern awards objective.
5.3 Jurisdiction and the modern awards objective
[270] We are satisfied that the model term is a permitted term within the meaning of
s.136(1)(a). Section 139(1)(h) provides:
‘Terms that may be included in modern awards—general
(1) A modern award may include terms about any of the following matters:
…
(h) leave, leave loadings and arrangements for taking leave’.
[2018] FWCFB 1691
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[271] Further, s.142(1) provides:
‘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.’
[272] Insofar as the model term provides an entitlement to five days’ unpaid family and
domestic violence leave, it is a term ‘about … leave’, within the meaning of s.139(1)(h). The
other elements of the model term, such as the definitions, notice and evidence requirements
and confidentiality, are incidental to the unpaid leave entitlement and are essential for the
purpose of making that term operate in a practical way. No party before us took a contrary
view.
[273] As noted at [19], the August 2017 Statement made clear that:
‘if a model term(s) is determined as part of these proceedings and we are satisfied that such a
term is necessary to achieve the modern awards objective then it will be inserted into each
modern award except those modern awards [for] which a party has indicated a preference for a
different approach’.236
[274] The August 2017 Statement also confirmed that the Australian Government Industry
Award 2016 would be included in the current proceedings and that the inclusion of any model
term arising from these proceedings in the remaining enterprise and State reference public
sector modern awards will also be considered during the review of those awards. The review
of those instruments will occur after the current technical and drafting processes for the Group
1 to 4 awards are substantially complete.237
[275] In response to the August 2017 Statement, the APSC238 and NatRoad239 both made
submissions in relation to certain award and industry-specific matters. The APSC submits that
it is not necessary to include specific clauses in respect of family and domestic violence leave
in the Australian Government Industry Award. NatRoad does not support the inclusion of any
model term in the Road Transport and Distribution Award 2010 or the Road Transport (Long
Distance Operations) Award 2010.240
[276] The three awards mentioned will be the subject of later proceedings to determine
whether it is necessary to vary those awards to insert the model term. We now turn to the
remaining 119 modern awards listed in Attachment C.
[277] As mentioned in Chapter 2, before varying a modern award the Commission must be
satisfied that if the modern award is varied in the manner proposed then it would only include
terms necessary to achieve the modern awards objective.
[278] The modern awards objective is to ‘ensure that modern awards, together with the
National Employment Standards, provide a fair and relevant minimum safety net of terms and
[2018] FWCFB 1691
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conditions, taking into account’ the particular considerations identified in s.134(1)(a) to (h).
We now turn to the s.134 considerations.
[279] Section 134(1)(a) requires that we take into account ‘relative living standards and the
needs of the low paid’. A threshold of two-thirds of median full-time wages provides a
suitable benchmark for identifying the ‘low paid’ for the purpose of s.134(1)(a).241
[280] The majority of low paid employees are award-reliant and some of these employees
are likely to be affected by family and domestic violence. The provision of five days’ unpaid
family and domestic violence leave is likely to assist the needs of the low paid. The model
term will enable employees affected by family and domestic violence to take unpaid leave if
they need to do something to deal with the impact of the violence – such as making
arrangements for their safety or the safety of their children – without affecting their
employment. This consideration is a factor in favour of varying modern awards to include the
model term.
[281] Section 134(1)(b) requires that we take into account ‘the need to encourage enterprise
bargaining’. As observed earlier, there is no persuasive evidence before us which would lead
us to conclude that inserting a term providing for unpaid family and domestic violence leave
would have an adverse impact on the incentive to bargain in respect of this matter. However,
we would also observe that the evidence does not persuade us that such a term would
necessarily encourage enterprise bargaining.
[282] Section 134(1)(c) requires that we take into account ‘the need to promote social
inclusion through increased workforce participation’. The use of the conjunctive ‘through’
makes it clear that in the context of s.134(1)(c), social inclusion is a concept to be promoted
exclusively ‘through increased workforce participation’. As the Expert Panel observed in the
2012-2013 Annual Wage Review decision242 obtaining employment is the focus of this
consideration. But in our view social inclusion may also be promoted by assisting employees
to remain in employment.
[283] As shown in the PSS, around 62 percent of women who have experienced family and
domestic violence in the 12 months prior to the survey were in paid work. The provision of
unpaid family and domestic violence leave is likely to assist employees to remain in
employment while they deal with the impact of the violence. As related earlier, employment
is an important pathway out of violent relationships. Sustained periods of employment can
provide financial security, independence, social networks and increased self-esteem.
[284] The Majority Decision stated:
‘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.’243
[285] We note that the above finding relates to the provision of paid family and domestic
violence leave. It is also apposite to the provision of unpaid family and domestic violence
leave. We adopt the finding. The consideration in s.134(1)(c) supports the variation of modern
awards to include the model term.
[286] It is convenient to deal with ss.134(1)(d) and (f) together.
[2018] FWCFB 1691
57
[287] Section 134(1)(d) requires that we take into account ‘the need to promote flexible
modern work practices and the efficient and productive performance of work’ and s.134(1)(f)
requires that we take into account ‘the likely impact of any exercise of modern award powers
on business, including on productivity, employment costs and the regulatory burden’.
[288] The word ‘productivity’ in s.134 has the conventional meaning it is given in
economics of the number of units of output per unit of input. Productivity is a measure of the
volumes or quantities of inputs and outputs, not the cost of purchasing those inputs or the
value of outputs generated. The price of inputs, including the cost of labour, raises separate
considerations relating to business competitiveness and employment costs.244
[289] We also note that s.134(1)(f) is expressed in very broad terms; it refers to the likely
impact of any exercise of modern award powers ‘on business, including’ (but not confined to)
the specific matters mentioned, that is, ‘productivity, employment costs and the regulatory
burden’.
[290] The extent of the impact of the model term on business will depend upon the extent to
which the entitlement is utilised in practice. As the extent of utilisation is unknown, it follows
that it is difficult to predict the effect of the model term on business.
[291] However, we accept that, to the extent that it is accessed by employees, the new
entitlement to unpaid leave will have some adverse impact on business. It will increase
employment costs and may adversely impact on the efficient and productive performance of
work. But we doubt that the taking of this unpaid leave entitlement would have any
significant impact on productivity.
[292] The variation of modern awards to insert the model term will also give rise to some,
albeit not significant, increase in the regulatory burden upon business in administering the
leave entitlement.
[293] The considerations in ss.134(1)(d) and (f) tell against varying modern awards to
include the model term.
[294] Section 134(1)(da) requires that we take into account 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.’
[295] It is common ground that this consideration is not relevant in the present context.
[296] Section 134(1)(e) requires that we take into account ‘the principle of equal
remuneration for work of equal or comparable value’. The expression ‘equal remuneration for
work of equal or comparable value’ is defined in s.302(2) to mean ‘equal remuneration for
men and women workers for work of equal or comparable value’.
[2018] FWCFB 1691
58
[297] We accept that family and domestic violence is a gendered phenomenon, in that it
predominately affects women. But s.134(1)(e) is concerned with the provision of equal
remuneration in particular, not the impact of an award term on women generally. The
consideration in s.134(1)(e) is not relevant in the present context.
[298] Section 134(1)(g) requires that we take into account ‘the need to ensure a simple, easy
to understand, stable and sustainable modern award system for Australia that avoids
unnecessary overlap of modern awards’.
[299] We accept that the variation of modern awards to insert the model term will add a
degree of complexity to modern awards insofar as it will give rise to an additional employee
entitlement (and a corresponding employer obligation). However, the decisions we have made
in relation to the content of the model term are intended to make the provision simple and
easy to understand.
[300] Section 134(1)(h) requires that we take into account ‘the likely impact of any exercise
of modern award powers on employment growth, inflation and the sustainability, performance
and competitiveness of the national economy’. The matters mentioned in s.134(1)(h) focus on
the aggregate (as opposed to sectorial) impact of an exercise of modern award powers.
[301] For the reasons given above the impact of the model term is difficult to predict. But it
is an unpaid leave entitlement which is only accessible in particular circumstances. We note
that the model term may also have some positive economic effects, in terms of allowing
women affected by family and domestic violence to remain in employment.
[302] We doubt that the variation of modern awards to insert the model term will give rise to
any significant adverse impact on the national economy.
[303] We have taken into account the considerations in ss.134(1)(a) to (h) and are satisfied
that the variation of modern awards to include the model term is necessary to ensure that such
awards achieve the modern awards objective. As we have mentioned, retaining employment is
an important pathway out of violent relationships. Conversely, a lack of financial security has
an adverse impact on the ability to recover from family and domestic violence. Absent an
entitlement to unpaid family and domestic violence leave, employees will be reliant on the
goodwill of their employer to obtain the leave necessary to deal with the various issues arising
from family and domestic violence while remaining in employment. Our decision in this
regard relates to the 119 modern awards listed at Attachment C.
[2018] FWCFB 1691
59
6. Next Steps
[304] The drafting of the model term to give effect to our decision will be finalised in the
coming weeks. Interested parties will be given an opportunity to comment on the final form of
the model term. Such comments are to be directed to whether the model term accurately
reflects the outcome of our decision; it is not an opportunity to re-litigate matters we have
determined.
[305] Further proceedings in relation to the awards referred to at [275] will be the subject of
a mention to be held in Sydney at 11:00am on Tuesday 1 May 2018.
[306] As we have observed, family and domestic violence is ubiquitous. One in four women
in Australia have experienced such violence (almost 2.2 million women). Such violence not
only affects those who suffer it, but the children who are exposed to it, extended families,
friends and work colleagues. It is an issue that impacts on workplaces and which requires
specific action.
[307] This decision takes a cautious regulatory response to this issue. We have decided to
provide five days’ unpaid leave to employees experiencing family and domestic violence, if
the employee needs to do something to deal with the impact of that violence and it is
impractical for them to do it outside their ordinary hours of work. We have decided to defer
our consideration of whether employees should be able to access paid personal/carer’s leave
for the purpose of taking family and domestic violence leave.
[308] The extent to which the new entitlement to unpaid leave will be utilised is unknown,
as is the impact of the new entitlement on business.
[309] We propose to revisit this issue in June 2021, after the model term has been in
operation for three years. At that time we will consider whether any changes are needed to the
unpaid leave model term, and whether to allow access to personal/carer’s leave. At that time
we will also revisit the question of whether provisions should be made for paid family and
domestic violence leave.
PRESIDENT
Appearances:
Sydney:
Ms S Ismail and Ms K Burke on behalf of the Australian Council of Trade Unions
Mr B Ferguson and Ms R Bhatt on behalf of the Australian Industry Group
[2018] FWCFB 1691
60
Mr N Ward on behalf of the Australian Chamber of Commerce and Industry, Australian
Business Industrial of the NSW Business Chamber and Pharmacy Guild of Australia
Mr G Johnston on behalf of the Australian Meat Industry Council
Melbourne:
Ms L McBride on behalf of the Community and Public Sector Union
Canberra:
Ms A Ballard on behalf of the National Road Transport Association
Hearing details:
Sydney.
2017.
19 and 20 October.
Final written submissions:
Australian Chamber of Commerce and Industry, 1 September 2017
Australian Council of Trade Unions, 1 September 2017
Australian Industry Group, 30 August 2017
Australian Meat Industry Council, 1 September 2017
Australian Public Service Commission, 31 August 2017
Dr P Harpur and others, 14 August 2017
National Road Transport Association, 1 September 2017
Final written submissions in reply:
Australian Council of Trade Unions, 2 October 2017
Australian Industry Group, 1 October 2017
Master Electricians Australia, 3 October 2017
Transport Workers’ Union of Australia, 29 September 2017
Printed by authority of the Commonwealth Government Printer
PR601395
[2018] FWCFB 1691
61
1 ACTU submissions, 28 October 2014.
2 [2015] FWCFB 5585 at [2].
3 ACTU submission 15 June 2015, Attachment A.
4 [2015] FWCFB 5585.
5 Ibid at [21].
6 [2017] FWCFB 1133 at [146].
7Ibid at [140].
8 Ibid at [146].
9 [2017] FWCFB 3494.
10 Ibid at [6].
11 [2017] FWCFB 3865.
12 [2017] FWCFB 4047.
13 Ibid at [17]–[19].
14 [2017] FWC 5192.
15 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].
16 O’Sullivan v Farrer (1989) 168 CLR 210 at p. 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.
17 See 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [40]–[48].
18 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [85]. Although the Court’s observations were
directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) they are apposite to s.156(5).
19 Ibid at [86]. While the Full Federal Court was considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5)
of the FW Act, which is in substantially the same terms.
20 [2017] FCAFC 123.
21 Ibid at [28]-[29].
22 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140].
23 [2017] FWCFB 1001.
24 Ibid at [269].
25 Edwards v Giudice (1999) 94 FCR 561 at para 5; Australian Competition and Consumer Commission v Leelee Pty Ltd
[1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].
26 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].
27 (2012) 205 FCR 227.
28 Ibid at [35]–[37] and [46].
29 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227.
30 Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at
[37].
31 [2014] FWCFB 1788.
32 Ibid at [36].
33 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].
34 National Retail Association v Fair Work Commission (2014) 225 FCR 154.
35 Ibid at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the
Commission’s task in the Review.
36 [2017] FCAFC 123 at [23].
37 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].
38 [2017] FCAFC 161.
39 Ibid at [48].
40 [2017] FWCFB 1001 at [230]-[268]; Shop, Distributive and Allied Employees Association v The Australian Industry
Group [2017] FCAFC 161 at [23].
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1001.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5192.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4047.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3865.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3494.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3494.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1133.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1133.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5585.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am20151and2-sub-actu-150615.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5585.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/sub2-actu-281014.pdf
[2018] FWCFB 1691
62
41 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [34].
42 [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group
[2017] FCAFC 161 at [41]–[44].
43 [2017] FCAFC 161 at [49] and [65].
44 Ibid at [53].
45 [2017] FWCFB 1001 at [128].
46 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [18].
47 See, for example, The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award
2012 [2012] FWA 2556.
48 Transcript, 14 November 2016 at [34]-[526].
49 Transcript,14 November 2016 [537]-[679].
50 Transcript, 14 November 2016 at [686]-[802].
51 Transcript, 15 November 2016 at [873]-[954] and [998]-[1135].
52 Transcript, 15 November 2016 at [1140]-[1255].
53 Transcript, 15 November 2016 at [1267]-[1325].
54 Transcript, 15 November 2016 at [1327]-[1407].
55 Transcript, 16 November 2016 at [1432]-[1490].
56 Transcript, 16 November 2016 at [1515]-[1617].
57 Transcript, 16 November 2016 at [1655]-[1688].
58 Transcript, 17 November 2016 at [1942]-[2010].
59 Transcript, 17 November 2016 at [2013]-[2081].
60 Transcript, 17 November 2016 at [2082]-[2126].
61 Transcript, 17 November 2016 at [2134]-[2220].
62 Transcript, 18 November 2016 at [2234]-[2331].
63 Transcript, at 17 November 2016 at [1726]-[1930].
64 Transcript, 18 November 2016 at [2356]-[2518].
65 [2017] FWCFB 3494 at [49].
66 Ibid.
67 Ibid at [56].
68 Ibid at [54].
69 Ibid at [60]-[61].
70 Ibid at [51].
71 Department of Social Services (2011), National plan to reduce violence against women and their children 2010–2022,
Australian Government, p. 1.
72 ACTU final submission, 28 November 2016 at [42]; As the ACTU submits ‘[t]he centrality of control to an understanding
of family and domestic violence is reflected in statutory definitions of family and domestic violence in s. 4AB of the
Family Law Act 1975 and s. 5 of the Family Violence Protection Act 2008 (Vic)’.
73
Exhibit B4, Expert Report of Dr Michael Flood at [2.6].
74 Exhibit B4 at [3.20].
75 Cussen T & Bryant W, Domestic/family homicide in Australia, Research in Practice, No.38 May 2015, Australian
Institute of Criminology. at http://www.aic.gov.au/publications/current%20series/rip/21-40/rip38.html
76 Ibid at p. 2.
77 Ibid at p. 2.
78 Ibid, p. 3.
79 Ibid.
80 Exhibit B1, Expert Report of Dr. Peta Cox at [7.2]-[7.5].
81 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2005, Catalogue No. 4906.0.
82 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.
83 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.
http://www.aic.gov.au/publications/current%20series/rip/21-40/rip38.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-281116.pdf
http://www.dss.gov.au/sites/default/files/documents/08_2014/national_plan1.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-transcript-fwc-181116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-transcript-fwc-171116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-transcript-cont-fwc-161116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-transcript-cont-fwc-151116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-transcript-fwc-141116.pdf
[2018] FWCFB 1691
63
84 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.
85 VicHealth and Department of Human Services (2004), The health costs of violence: measuring the burden of disease caused by intimate
partner violence, Victorian Government.85
86 Victorian Health Promotion Foundation (VicHealth) and Department of Human Services (2004), The health costs of
violence: measuring the burden of disease caused by intimate partner violence, Victorian Government, p. 10.
87 Lum M et al, (2016), Examination of the health outcomes of intimate partner violence against women: State of
knowledge paper, Australia’s National Research Organisation for Women’s Safety, March, p20..
88 Exhibit ACTU B-6: Professor Cathy Humphreys, Expert report of Professor Cathy Humphreys at [6.2].
89 McFerran, L (2011) ‘Safe at Home, Safe at Work’, National Domestic Violence and the Workplace Survey, Australian
Domestic and Family Violence Clearinghouse, A Project of the Centre for Gender-Related Violence Studies and
Micromex Research, University of New South Wales (National Domestic Violence Workplace Survey 2011), page
2.
90 Cox P (2015) Violence Against women: Additional analysis of the Australian Bureau of Statistics’ Personal Safety
Survey, 2012 (Cox ANROWS Report 2015) at [4.3].
91 Exhibit B1 at [8.24]–[8.25], [8.27]–[8.30].
92 Exhibit B1 at [8.28], [8.30].
93 Exhibit B23, Confidential Witness 1, at [23].
94 Exhibit B24, Confidential Witness 2, at [10].
95 Exhibit B11, Witness Statement of Emma Smallwood [38].
96 Exhibit B11 at [40]–[41].
97 Exhibit B5, Cortis N, Women’s economic security and domestic violence: the role of employment, employment support
and employment protection at [21] ,. taken from PSS 2012, ABS Table A17 ‘Women’s experience of violence by
intimate partner during last 12 months’.
98 See for example Cortis Report, McFerran Report and Exhibit B17, Witness Statement of Jocelyn Bignold at 36. Also see
S Patton, Pathways: How Women Leave Violent Men, Government of Tasmania, Hobart, 2003, p xviii; R Braaf and I
Barrett Meyering, Seeking Security: Women's Economic Wellbeing During and Following Domestic Violence,
Australian Domestic and Family Violence Clearinghouse, Sydney, 2011.
99 PwC (2015), A high price to pay: the economic case for preventing violence against women, a report prepared for
OurWatch and VicHealth, November 2015.
100 KPMG (2009), The cost of violence against against women and their children, The National Council to Reduce Violence
Against Women and Their Children, March 2009.
101 Access Economics (2004), The cost of domestic violence to the Australian economy, a report prepared for the Office of
the Status of Women, Department of the Prime Minister and Cabinet.
102 Estimates were calculated by applying the respective prevalence rates in 2012 to the population of women aged 18 and
over in 2014-15. ABS analysis of the Personal Safety Survey showed no statistically significant increase in the
prevalence of violence between the 2005 and 2012 survey. Therefore it was assumed that there is no increase in the
prevalence rate of violence between 2012 and the present.
103 PwC (2015), A high price to pay: the economic case for preventing violence against women, a report prepared for Our
Watch and VicHealth, November, p. 11.
104 Neave M, Faulkner P & Nicholson T (2016), Royal Commission into family violence: summary and recommendations,
Victorian Government, Royal Commission into Family Violence, March, Volume VI at p. 222.
105 [2017] FWCFB 3494 at [6].
106 [2017] FWCFB 4047.
107 ACTU submissions, 1 September 2017 at [57].
108 ACTU submissions, 1 September 2017 at [54].
109 Ai Group submissions, 30 August 2017 at [63].
110 NatRoad submissions, 1 September 2017 at [95]-[98].
111 4 Yearly Review of Modern Awards – Alleged NES Inconsistencies, [2015] FWCFB 3023, (2015) 249 IR 358.
112 Ibid at [37].
113 Ai Group submissions, 30 August 2017 at [61].
114 Ai Group submissions, 30 August 2017 at at [62]-[63].
115 NatRoad submissions, 1 September 2017 at [98].
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-natroad-010817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/documents/awardmod/decs/2015fwcfb3023.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-natroad-010817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
http://www.rcfv.com.au/Report-Recommendations
https://www.dss.gov.au/our-responsibilities/women/publications-articles/reducing-violence/the-cost-of-domestic-violence-to-the-australian-economy
https://www.dss.gov.au/our-responsibilities/women/publications-articles/reducing-violence/national-plan-to-reduce-violence-against-women-and-their-children/economic-cost-of-violence-against-women-and-their-children
https://www.vichealth.vic.gov.au/media-and-resources/publications/the-health-costs-of-violence
https://www.vichealth.vic.gov.au/media-and-resources/publications/the-health-costs-of-violence
[2018] FWCFB 1691
64
116 Re Canavan Building Pty Ltd [2014] FWCFB 3202.
117 Ibid at [36].
118 ACTU submissions, 1 September 2017 at [67].
119 ACTU submissions, 1 September 2017 at [71].
120 ACTU submissions, 1 September 2017 at [72] and [54].
121 AMIC submissions, 1 September 2017 at [112]-[115].
122 Workplace Relations Amendment (Work Choices) Act 2005 (Cth).
123 In January 2004 the Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (Cth) had
introduced into Schedule 1A of the WR Act a set of minimum employment conditions for Victorian employees. These
were based on the Fair Employment Bill 2000 (Vic) and included paid ‘personal leave’ and separate ‘bereavement leave’.
Paid personal leave accrued at the rate of 8 days per year, and was available for absences ‘due to personal illness or
injury’ (sick leave) and ‘for the purposes of caring for a member of the employee’s immediate family or a member of the
employee’s household who is sick and requires care and support’ (carer’s leave). Use of paid personal leave for carer’s
leave was capped at 5 days per year.
124 (2005) 143 IR 245.
125 Ai Group submissions, 30 August 2017 at [40]-[44].
126 Ai Group submissions, 30 August 2017 at [41].
127 Ai Group submissions, 30 August 2017 at [46].
128 Ai Group submissions, 30 August 2017 at [52].
129 Ai Group submissions, 30 August 2017 at [54]-[55].
130 ACTU submissions, 1 September 2017 at [54] and [73]-[74].
131 Ai Group submissions, 30 August 2017 at [54]-[55].
132 ACCI submissions, 1 September 2017 at [73].
133 Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FWCFB 3124.
134 ACTU submissions, 1 September 2017 at [73].
135 ACCI submissions, 1 September 2017 at [68]-[70].
136 ACTU submissions, 1 September 2017 at [76].
137 ACCI submissions, 1 September 2017 at [74].
138 [2017] FWCFB 3494 at [6].
139 Ai Group submissions, 1 October 2017 at [29]-[56].
140 Ai Group submissions, 1 October 2017 at [50].
141 Ai Group reply submission, Witness statement of Jenni Mandel, 19 September 2016.
142 Exhibit F4, Witness Statement of Jenni Mandel at [10]–[11].
143 Exhibit F4 at. [12].
144 Exhibit F4 at [14].
145 Exhibit F4 at [16]-[17].
146 Exhibit F4 at [20].
147 Exhibit F4 at [22]-[23].
148 Exhibit F4 at [26].
149 Exhibit F4 at [27].
150 Exhibit F4 at [28].
151 Exhibit F4 at [28].
152 Exhibit F4 at [30].
153 Exhibit F4 at [32].
154 Exhibit F4 at [34].
155 Exhibit F4 at [35].
156 Ai Group reply submission, 19 September 2016 at [450].
157 Ai Group reply submission, 19 September 2016 at [451]; Ai Group final submission, 28 November 2016 at [623].
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-aig-replysub-190916.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-aig-replysub-190916.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-aig-replysub-190916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
[2018] FWCFB 1691
65
158 Ai Group reply submission, 19 September 2016 at [461].
159 Ai Group submission, 28 November 2016 at [619]–[620].
160 Ai Group submission, 28 November 2016 at [621].
161 Ai Group reply submission, 19 September 2016 at [462].
162 Ai Group reply submission, 19 September 2016 at [464].
163 ACCI submission, 16 September 2016 at [8.28]–[8.29]. ACCI stated that these may include superseded or expired
agreements no longer in use.
164 ACCI submission, 16 September 2016 at [8.32].
165 ACCI submission, 16 September 2016 at [8.33].
166 ACCI final submission, 28 November 2016 at [6.1].
167 ACCI final submission, 28 November 2016 at [6.4].
168 See Exhibits ACTU B-8, ACTU B-9, ACTU B-10, ACTU B-14 and ACTU B-15. The union officials are Gandy, O’Neil,
Doleman, Kemppi and Jackson.
169 ACTU final submission, 28 November 2016 at [163].
170 ACTU final submission, 28 November 2016 at [163].
171 ACTU final submission, 28 November 2016 at [164].
172 ACTU final submission, 28 November 2016 at [165].
173 ACTU final submission, 28 November 2016 at [166]; Transcript, Friday 18 November 2016, [2438]–[2444]; [2470]–
[2473]; [2486]–[2488].
174 [2015] FWCFB 3406 at [252]
175 [2017] FWCFB 3494 at [51].
176 Ibid at [39]-[46].
177 Ibid at [46].
178 Transcript, 20 October 2017 at [557]-[601].
179 Transcript, 19 October 2017 at [27]-[30] and [556].
180 See generally ACTU Submission 1 September 2017 at [9]-[13].
181 Transcript 19 October 2017 at [47].
182 Transcript 19 October 2017 at [50].
183 For example, ACCI Submission 29 September 2017 at [36]-[38].
184 Ai Group submission,. 29 September 2017 at [61].
185 s.104, Fair Work Act 2009 (Cth).
186 Transcript, 19 October 2017 at [58].
187 Transcript, 19 October 2017 at [58].
188 Ai Group submission, 30 August 2017 at [10]-[11].
189 MEA submission, 3 October 2017 at p.3
190 AMIC submission, 1 September 2017 at [47].
191 ACCI submission, 1 September 2017 at [20].
192 ACCI submissions, 1 September 2017 at [34].
193 ACCI submissions, 1 September 2017 at [33].
194 Transcript, 20 October 2017 at [476].
195 NatRoad submission, 1 September 2017 at [53].
196 Transcript, 20 October 2017 at [555].
197 No relevant regulations have been made.
198 Section 111(5) provides that for employees (other than casuals) paid leave for jury service is capped at 10 days. Casuals
have no entitlement to paid leave. Unpaid jury service leave is uncapped.
199 Transcript, 20 October 2017 at [341]-[374]; Also see Ai Group’s submission 30 August 2017 at [12]-[16].
200 Breckenridge J, Cale J, Hameed S, McCaskie L & Tzoumakis S (2015), Implementation of domestic violence clauses—an
employer’s perspective, Gendered Violence Research Network, University of New South Wales.
201 ACTU Submission 1 June 2016 at [7.29]-[7.31].
202 We note that this is the calculation after the adjustment and removal of an extreme outlier where a respondent noted 912
hours, refer to p.7 of the Report.
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-sub-actu-010616.pdf
http://www.actu.org.au/media/886612/implementation-of-dv-clauses-an-employers-perspective.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-281116.pdf
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[2018] FWCFB 1691
66
203 ACTU Submission1 June 2016 at [7.29]-[7.31].
204 Breckenridge J, Cale J, Hameed S, McCaskie L & Tzoumakis S (2015), Implementation of domestic violence clauses—an
employer’s perspective, Gendered Violence Research Network, University of New South Wales, p.3
205 Ibid at p.7
206 Ibid at p. 12.
207 Ibid at Table 1. Table 1 does not tell us how many employees are employed in each sector, it simply provides a
‘description of the workplaces’.
208 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.
209 Transcript, 20 October 2017at [491]-[512].
210 Exhibit S1 at [19](a).
211 Transcript, 17 November 2016 at [1887].
212 Transcript, 20 October 2017 at [493].
213 Transcript, 17 November 2016 at [1888].
214 Transcript, 17 November 2016 at [1751]-[1754].
215 Exhibit S1 at [35].
216 ACTU Submission, 1 September 2017 at [40]; Transcript, 19 October 2017 at [66].
217 Ai Group submission 30 August 2017 at [26].
218 NatRoad submission, 1 August 2017 at [89].
219 NatRoad submission, 1 August 2017 at [89].
220 Transcript, 20 October 2017 at [447].
221 Transcript, 20 October 2017 at [521]-[530].
222 AMIC submission – Preliminary views, 1 September 2017 at [96].
223 AMIC submission – Preliminary views, 1 September 2017 at [101].
224 MEA Submission – Preliminary views, 3 October 2017 at p.2.
225 ACTU Final Submissions, 28 November 2016 at [6].
226 Re Metal, Engineering and Associated Industries Award 1998- Part 1 (2001) 105 IR 27; Re Request from the Minister for
Employment and Workplace Relations – 28 March 2008 Award Modernisation (AM2008/1-12 (2008) 177 IR 364 at
[47]-[50].
227 Transcript, 20 October 2017 at [389]-[401].
228 Transcript 20 October 2017 at [515]-[516].
229 Transcript, 20 October 2017 at [401].
230 Transcript, 19 October 2017 at [72].
231 Transcript, 19 October 2017 at [80]-[82].
232 Transcript, 19 October 2017 at [86].
233 ACCI submission1 September 2017 at [6.1].
234 Ai Group submission, 30 August 2017 at [31].
235 Transcript, 20 October 2017 at [518].
236 [2017] FWCFB 4047 at [18]-[19].
237 see [2014] FWCFB 5537 at [16]–[18].
238 APSC submission 28 July 2017.
239 NatRoad submission 28 July 2017.
240 NatRoad submission 1 September 2017 at [6].
241 See 4 yearly review of modern awards – Penalty Rates – Hospitality and Retail sectors [2017] FWCFB 1001 at [166]-
[168].
242 [2012] FWCFB 4000 at [100]-[102].
243 [2017] FWCFB 3494 at [82].
244 [2017] FWCFB 1001 at [220]-[225].
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
http://www.actu.org.au/media/886612/implementation-of-dv-clauses-an-employers-perspective.pdf
http://www.actu.org.au/media/886612/implementation-of-dv-clauses-an-employers-perspective.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-sub-actu-010616.pdf
67
Attachment A – List of Statements issued
Document Date
Statement – [2017] FWC 5445 20 October 2017
Statement – [2017] FWCFB 5426 19 October 2017
Statement – [2017] FWC 5417 19 October 2017
Statement – [2017] FWC 5192 6 October 2017
Statement – [2017] FWC 4729 15 September 2017
Statement and Directions – [2017] FWCFB 4047 3 August 2017
Statement – [2017] FWCFB 3865 24 July 2017
Statement – [2017] FWC 3696 14 July 2017
Statement - [2017] FWC 3389 23 June 2017
Statement - [2017] FWC 3316 20 June 2017
Statement - [2017] FWC 2928 29 May 2017
Statement - [2017] FWC 2347 28 April 2017
Statement - [2017] FWC 2189 18 April 2017
Statement - [2017] FWC 1733 27 March 2017
Statement - [2014] FWC 8583
1 December 2014
https://www.fwc.gov.au/decisionssigned/html/2014FWC8583.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1733.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2189.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2347.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwc2928.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/2017fwc3316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwc3389.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3696.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3865.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4047.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4729.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5192.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwc5417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwcfb5426.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwc5445.pdf
68
Attachment B – List of submissions filed
Item
no.
Document title Organisation Document date
1 Submission in reply – preliminary views MEA 3/10/2017
2 Submission in reply – preliminary views –
background paper – Attachment A ACTU 2/10/2017
3 Submission in reply – preliminary views Ai Group 1/10/2017
4 Submission in reply – preliminary views TWU 29/09/2017
5 Submission in reply – preliminary views -
background paper
AMIC 29/09/2017
6 Submission in reply – background paper ACCI 29/09/2017
7 Submission – preliminary views - amended ACTU 1/09/2017
8 Submission – preliminary views ACTU 1/09/2017
9 Submission – preliminary views ACCI 1/09/2017
10 Submission – preliminary views AMIC 1/09/2017
11 Submission – preliminary views NatRoad 1/09/2017
12 Submission – preliminary views APSC 31/08/2017
13 Submission – preliminary views Ai Group 30/08/2017
14 Submission Dr P Harpur and
others
14/08/2017
15 Submission – future conduct ACCI 28/07/2017
16 Submission – future conduct Ai Group 28/07/2017
17 Submission – future conduct ACTU 28/07/2017
18 Submission – inclusion of the Australian
Government Industry Award
APSC 28/07/2017
19 Submission – future conduct AMIC 28/07/2017
20 Submission – future conduct NatRoad 27/07/2017
21 Submission – inclusion of enterprise awards CPSU 19/07/2017
22 Submission National Road
Transport
Association
05/04/2017
23 Submission – response to questions ACTU 04/04/2017
24 Submission – response to questions Ai Group 03/04/2017
25 Submission – response to questions ACCI 03/04/2017
26 Submission - further information Victorian
Government
Solicitor's Office
06/12/2016
27 Submission Brisbane Catholic
Education
01/12/2016
28 Submission ACTU 28/11/2016
29 Submission ACCI 28/11/2016
30 Submission Ai Group 28/11/2016
31 Submission - tender list ACTU 25/11/2016
32 Submission ACT Government 23/11/2016
33 Submission Surf Coast Shire
Council
16/09/2016
34 Submission Council of
Greater
Dandenong
15/11/2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-asu-151116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-scsc-221116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actgov-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-251116.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-sub-aig-281116.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-sub-acci-281116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-281116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-bce-011216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-vgso-061216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-030417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-030417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-040417.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-sub-natroad-050417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-190717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-natroad-270717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-270717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-apsc-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-harpurandors-140817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-apsc-310817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-natroad-010817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-010917-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-290917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-290917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-twu-290917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-011017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-021017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-mea-031017.pdf
[2018] FWCFB 1691
69
35 Submission Queensland
Government
14/11/2016
36 Submission - objection to evidence - ACTU Ai Group 13/11/2016
37 Witness statements and expert evidence -
updated
ACTU 11/11/2016
38 Witness statement - J. Stott - revised -
redacted
ACTU 11/11/2016
39 Submission NRA 02/11/2016
40 Submission in reply - witness statement and
expert report
ACTU 17/10/2016
41 Submission - amended witness statement ACTU 14/10/2016
42 Submission in reply AHRC 14/10/2016
43 Submission - source documents ACCI 12/10/2016
44 Submission in reply ACTU 05/10/2016
45 Submission National
Foundation for
Australian
Women
05/10/2016
46 Reply submission and witness statements Ai Group 19/09/2016
47 Submission PGA 19/09/2016
48 Submission AFEI 19/09/2016
49 Submission AMIC 16/09/2016
50 Submission ACCI 16/09/2016
51 Submission NFF 15/09/2016
52
Submission
Aged Care
Services Australia
Group
15/09/2016
53
Submission and witness statement
Pricewaterhouse
Coopers
20/06/2016
54 Submission and witness statements ACTU 01/06/2016
55 Submission - confidentiality matters ACTU 26/05/2016
56
Submission
Victorian
Government
16/05/2016
57 Submissions AHRC 12/05/2016
58 Outline of Expert Evidence ACTU 05/05/2016
59 Further submission Ai Group 21/08/2015
60 Further submission ACCI and others 21/08/2015
61 Further submission ACTU 18/08/2015
62 Further submission and list of authorities Ai Group 11/08/2015
63 Correspondence and submissions ACTU 15/06/2015
64 Submission on preliminary issues NFF 20/04/2015
65 Submission - Jurisdictional objection Ai Group 20/04/2015
66 Submission HIA 20/04/2015
67 Outline of submissions ACCI 20/04/2015
68 Draft determinations ACTU 02/03/2015
69 Submission - draft clauses ACTU 13/02/2015
70 Submissions ACTU 11/11/2014
71 Submissions ACCI 11/11/2014
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196andors-sub-acci-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/multima-sub-nes-actu-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151and2-sub-actu-130215.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20152-draftdet-actu-020315.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-ACCI-200415.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-HIA-200415.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-AiG-200415.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-NFF-200415.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM20151and2-sub-actu-150615.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-AiG-110815.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-ACTU-180815.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-ACCI-210815.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM20151and2-sub-AIG-210815.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2051-expert-evidence-ACTU-050516pdf.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2051-sub-ahrc-120516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2051-sub-vg-160516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2051-sub-actu-260516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-sub-actu-010616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2051-sub-pwc-200616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acsag-150916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-nff-150916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-160916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-amic-160916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-afei-190916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-pga-190916.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-aig-replysub-190916.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-sub-nfaw-051016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-replysub-actu-051016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-acci-121016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-replysub-ahrc-141016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-ws-actu-0121016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-171016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-171016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-nra-021116.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-ws-actu-stott-111116.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2051-ws-actu-stott-111116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-expert-witness-statements-actu-141116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-expert-witness-statements-actu-141116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-141116.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20151-sub-qldgov-141116.pdf
[2018] FWCFB 1691
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72
Submission
Accommodation
Association of
Australia
11/11/2014
73
Submission
Australian Hotels
Association
11/11/2014
74
Submission
Private Hospital
Industry
Employers'
Associations
11/11/2014
75
Submission
Australian
Federation of
Employers and
Industries
11/11/2014
76 Submission Ai Group 11/11/2014
77
Submission
Housing Industry
Association
11/11/2014
78 Outline of Submissions NFF 11/11/2014
79
Submission
Restaurant and
Catering
Industrial
11/11/2014
80
Addendum to 10 November 2014
submission
Australian
Entertainment
Industry
Association
11/11/2014
81
Outline of submissions
Australian
Entertainment
Industry
Association
10/11/2014
82
Outline of Claim
United
Firefighters
Union of
Australia
28/10/2014
83 Outline of Claim ACTU 28/10/2014
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sub2-actu-281014.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sub2-ufua-281014.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/sub1-aeia-101114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196andors-sub-aeia-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196andors-sub-aeia-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014192andors-sub-rci-%20111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sub1-nff-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/sub-hia-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196and197-sub-aig-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196andors-sub-afei-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sub-phiea-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196-197-additional-sub-aha-111114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014196-197-additional-sub-aaa-111114.pdf
71
Attachment C – List of modern awards to be varied
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Airline Operations – Ground Staff Award 2010
Airport Employees Award 2010
Alpine Resorts Award 2010
Aluminium Industry Award 2010
Ambulance and Patient Transport Industry Award 2010
Amusement, Events and Recreation Award 2010
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Architects Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2010
Black Coal Mining Industry Award 2010
Book Industry Award 2010
Broadcasting and Recorded Entertainment Award 2010
Building and Construction General On-site Award 2010
Business Equipment Award 2010
Car Parking Award 2010
Cement and Lime Award 2010
Cemetery Industry Award 2010
Children’s Services Award 2010
Cleaning Services Award 2010
Clerks – Private Sector Award 2010
Coal Export Terminals Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Corrections and Detention (Private Sector) Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Educational Services (Teachers) Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Fire Fighting Industry Award 2010
Fitness Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Funeral Industry Award 2010
Gardening and Landscaping Services Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry – Academic Staff – Award 2010
[2018] FWCFB 1691
72
Higher Education Industry – General Staff – Award 2010
Horse and Greyhound Training Award 2010
Horticulture Award 2010
Hospitality Industry (General) Award 2010
Hydrocarbons Field Geologists Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Joinery and Building Trades Award 2010
Journalists Published Media Award 2010
Labour Market Assistance Industry Award 2010
Legal Services Award 2010
Live Performance Award 2010
Local Government Industry Award 2010
Mannequins and Models Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Marine Tourism and Charter Vessels Award 2010
Marine Towage Award 2010
Maritime Offshore Oil and Gas Award 2010
Market and Social Research Award 2010
Meat Industry Award 2010
Medical Practitioners Award 2010
Mining Industry Award 2010
Miscellaneous Award 2010
Mobile Crane Hiring Award 2010
Nursery Award 2010
Nurses Award 2010
Oil Refining and Manufacturing Award 2010
Passenger Vehicle Transportation Award 2010
Pastoral Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Plumbing and Fire Sprinklers Award 2010
Port Authorities Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Poultry Processing Award 2010
Premixed Concrete Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Professional Employees Award 2010
Quarrying Award 2010
Racing Clubs Events Award 2010
Racing Industry Ground Maintenance Award 2010
Rail Industry Award 2010
Real Estate Industry Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Salt Industry Award 2010
Seafood Processing Award 2010
Seagoing Industry Award 2010
Security Services Industry Award 2010
[2018] FWCFB 1691
73
Silviculture Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
Sporting Organisations Award 2010
State Government Agencies Administration Award 2010
Stevedoring Industry Award 2010
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Supported Employment Services Award 2010
Surveying Award 2010
Telecommunications Services Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Transport (Cash in Transit) Award 2010
Travelling Shows Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Water Industry Award 2010
Wine Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
[2018] FWCFB 1691
74
Attachment D – List of cases
4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177
4 yearly review of Modern Awards – Penalty Rates – Hospitality and Retail sectors [2017]
FWCFB 1001
Application by Canavan Building Pty Ltd [2014] FWCFB 3202
Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121
Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FWCFB 3124
Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty
Ltd [2017] FCAFC 123
Edwards v Giudice (1999) 94 FCR 561
Fire Fighting Industry Award decision [2016] FWCFB 8025
National Retail Association v Fair Work Commission (2014) 225 FCR 154
O’Sullivan v Farrer (1989) 168 CLR 210
Parental Leave Test Case 2005 (2005) 143 IR 245
Preliminary Jurisdictional Issues decision [2014] FWCFB 1788
Re 4 Yearly Review – Alleged NES Inconsistencies (2015) 249 IR 358
Schweppes Australia Pty Ltd v United Voice – Victoria Branch [2017] FWCFB 4047
Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017]
FCAFC 161
Shop, Distributive and Allied Employees Association v National Retail Association (No.2)
(2012) 205 FCR 227
The Australian Industry Group re Manufacturing and Associated Industries and Occupations
Award 2012 [2012] FWA 2556
