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
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER MELBOURNE, 6 JULY 2018
4 yearly review of modern awards –leave to deal with family and domestic violence model
term.
Background
[1] This decision finalises the content of a model term for unpaid leave to deal with family
and domestic violence. The model term will be inserted into all modern awards as part of the
4 yearly review of modern awards (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 awards.1
[3] On 3 July 2017, a Full Bench rejected the ACTU’s claim for paid family and domestic
violence leave,2 but the Majority Decision (Gooley DP and Spencer C) expressed the
preliminary view that all employees should have access to unpaid family and domestic
violence leave. The Majority Decision also expressed the preliminary view that employees
should be able to access personal/carer’s leave for the purpose of taking family and domestic
violence leave.3
[4] In a decision issued on 26 March 2018 (the March 2018 Decision)4 a Full Bench
confirmed the preliminary view expressed in the Majority Decision, that all employees should
have access to unpaid family and domestic violence leave.
[5] The Full Bench decided to provide five days’ unpaid leave per annum to all employees
(including casuals) experiencing family and domestic violence. It was also decided that such
leave will be available in the event that an employee needs to do something to deal with the
1 ACTU submissions, 28 October 2014.
2 [2017] FWCFB 3494.
3 [2017] FWCFB 3494 at [6].
4 [2018] FWCFB 1691.
[2018] FWCFB 3936
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/decisionssigned/html/2018fwcfb1691.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/sites/awardsmodernfouryr/common/sub2-actu-281014.pdf
[2018] FWCFB 3936
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impact of the family and domestic violence and it is impractical for them to do that thing
outside their ordinary hours of work.
[6] The Full Bench considered a number of matters relating to access to the entitlement to
five days’ unpaid leave, and decided that the unpaid leave entitlement:
will apply to all employees (including casuals);
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).5
[7] The Full Bench also decided not to require employees to access any available paid
leave entitlement before accessing unpaid family and domestic violence leave.6
[8] After determining all of the contested issues, the Full Bench was satisfied that the
model term was a ‘permitted term’ within the meaning of s.136(1)(a) of the Fair Work Act
2009 (Cth) and concluded that the variation of modern awards to include the model term was
necessary to ensure that such awards achieve the modern awards objective.7
[9] The Full Bench deferred consideration of access to personal/carer’s leave until June
2021.8
Finalising the Model Term
[10] We subsequently drafted a model term to give effect to the March 2018 Decision. In a
Statement issued on 3 May 2018, we invited interested parties to comment on the draft model
term, by 1 June 2018.9 Such comments were to be directed to whether the draft model term
accurately reflected the outcome of the March 2018 Decision, and was not an opportunity to
relitigate matters that have been determined.
[11] Submissions were received from:
(i) The Australian Chamber of Commerce and Industry (ACCI)
(ii) The Australian Council of Trade Unions (ACTU)
(iii) The Australian Industry Group (Ai Group)
(iv) National Road Transport Association (NatRoad)
(v) The Pharmacy Guild of Australia (the Pharmacy Guild)
5 [2018] FWCFB 1691 at [253].
6 [2018] FWCFB 1691 at [266].
7 [2018] FWCFB 1691 at [303].
8 [2018] FWCFB 1691 at [307] – [309].
9 [2018] FWCFB 2440 at [10] – [11].
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb2440.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1691.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1691.htm
https://www.fwc.gov.au/decisionssigned/html/2018fwcfb1691.htm
https://www.fwc.gov.au/decisionssigned/html/2018fwcfb1691.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-pga-130618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2051-sub-natroad-010618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-aig-130618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-130618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-2-sub-acci-150618.pdf
[2018] FWCFB 3936
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[12] ACCI, Ai Group and NatRoad submit that the model term attached to the 3 May
Statement accurately reflects the March 2018 Decision.
[13] The Pharmacy Guild submit that the model term does not reflect the intent of the
March 2018 Decision and makes the follow suggestions for amendment of the model term:
(i) Amend X.3(b) to make it clear that the entitlement to 5 days unpaid leave is fully
accrued at the employee’s employment start date and the entitlement is fully accrued
on the employee’s 12 month anniversary date for the duration of employment
thereafter.
(ii) Amend clause X.4(b) to replace the words “needs to do something” with “is
required to”.
[14] The ACTU submits that the model terms accurately reflects the March 2018 Decision
and the discussion between the parties during the conferences held in October 2017 subject to
two comments:
(i) Clause X.1 provides that the clause applies to all full-time, part-time and casual
employees. The ACTU submit that this could lead to uncertainty about the application
of the clause to fixed-term employees, apprentices and others. The ACTU suggest that
the clause be amended to read: “This clause applies to all employees, including
casuals”.
(ii) A new clause X.3(b)(iii) should be inserted to confirm that the leave is available in
full to part-time and casual employees, i.e that the leave is not pro-rated. The ACTU
submit that in the absence of such clarification, there may be some uncertainty about
the way in which this provision interacts with other award provisions which pro-rata
entitlements for part-time employees.
[15] This matter was the subject of a mention on 21 June 2018. A transcript of the mention
is available on the Commission’s website. The ACTU, ACCI, Ai Group and NatRoad were
represented at the mention.
[16] At the mention, there was no opposition to the ACTU’s proposed changes to the draft
model term. However, ACCI sought a short opportunity to reflect on a possible implication
arising from the ACTU’s proposal.
[17] The Pharmacy Guild did not appear at the mention. The changes proposed in their
submission of 13 June 2018 were opposed by the ACTU and were not the subject of comment
by any other employer organisations.
[18] A Report of the outcome of the mention was issued on 22 June 2018, confirming the
matters discussed at the mention and directing the parties as follows:
1. ACCI is to file any additional comment it wishes to make by no later than 4pm
Monday, 25 June 2018.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-report-fwc-220618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/210618-am20151.htm
[2018] FWCFB 3936
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2. All parties are invited to file any final comments on the proposed model term,
having regard to the discussion at the conference and any material filed by
ACCI pursuant to direction 1, by no later than 4pm Thursday, 28 June 2018.
3. All submissions are to be sent to amod@fwc.gov.au.
4. Liberty to apply.
[19] ACCI filed a submission on 25 June 2018 in compliance with the above directions,
which relevantly states:
‘At the proceedings on 21 June 2018, we raised by way of observation a small issue in the
drafting.
That observation succinctly expressed is as follows:
1. Clause X.3 (a) commences with the expression “Each year...”
2. Clause X.3 (b) (i) expresses the entitlement as being “...available in full at the start
of each 12 month period...”
An employer (or employee) reading this without the benefit of advice may be confused by the
juxtaposition of these two propositions.
The reference to a “year” is likely to invoke the notion of a calendar year for most employers.
The words “Each year” appearing in clause X.3 (a) appear unnecessary given clause X.3 (b)
(i).’
[20] No other submissions were received.
[21] It is convenient to deal first with ACCI’s proposed changes. We agree that the words
‘Each year’ in clause X.3(a) may lead to confusion, given the terms of clause X.3(b)(i). We
will delete these words and merge subclauses X.3(a) and (b).
[22] We now turn to the amendments proposed by the Pharmacy Guild. We note that the
Pharmacy Guild did not attend the mention on 21 June 2018; nor did it avail itself of the
opportunity to make further submissions in support of its position. We also note that no other
party in the proceedings expressed any support for the amendments proposed by the
Pharmacy Guild.
[23] We do not propose to make either of the changes sought by the Pharmacy Guild. The
proposal to amend X.3(b) to make it clear that the entitlement is ‘fully accrued’ at the
commencement of the employee’s employment is unnecessary. Clause X.3 is sufficiently
clear and it reflects the March 2018 Decision.
[24] The Pharmacy Guild’s proposal to amend Clause X.4(b) to replace the words ‘needs to
do something’ with ‘is required to’, would change the nature of the entitlement determined in
the March 2018 Decision. The expression ‘is required to’ suggests that the action is to be
taken in compliance with a direction of some sort, such as a summons to appear. The current
expression ‘needs to do something’ is not so restrictive. We do not propose to make the
change sought.
mailto:amod@fwc.gov.au
[2018] FWCFB 3936
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[25] We have decided to make the changes sought by ACTU. The proposed changes were
not opposed by any party and they will improve the clarity of the model term and make it
easier to understand.
[26] As we concluded in the March 2018 Decision, we are satisfied that it is necessary to
vary all modern awards to include the model term to ensure that those modern awards achieve
the modern awards objective. In particular, we said:
‘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.’10
[27] We adhere to the view expressed above.
[28] The final version of the model term is at Attachment A to this decision.
Next steps
[29] Draft variation determinations varying all modern awards to include the model term
will be issued shortly.
[30] Interested parties will have 14 days to comment on the draft variation determinations.
It is intended that the new entitlement to 5 days’ unpaid leave to deal with family and
domestic violence leave will come into effect on 1 August 2018.
PRESIDENT
Appearances:
Sydney:
Mr B Ferguson on behalf of the Australian Industry Group
Mr N Ward on behalf of the Australian Chamber of Commerce and Industry
Melbourne:
Ms S Ismail on behalf of the Australian Council of Trade Unions
10 [2018] FWCFB 1691 at para [303].
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1691.htm
[2018] FWCFB 3936
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Canberra:
Mr D Johns on behalf of the National Road Transport Association
Hearing details:
Sydney.
2018.
21 June.
Final written submissions:
Australian Chamber of Commerce and Industry, 25 June 2018
Printed by authority of the Commonwealth Government Printer
PR608685
[2018] FWCFB 3936
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ATTACHMENT A
Leave to deal with Family and Domestic Violence: Model Term
X.1 This clause applies to all employees, including casuals.
X.2 Definitions
(a) In this clause:
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:
(i) a spouse, de facto partner, child, parent, grandparent, grandchild or
sibling of the employee; or
(ii) a child, parent, grandparent, grandchild or sibling of a spouse or de
facto partner of the employee; or
(iii) a person related to the employee according to Aboriginal or Torres
Strait Islander kinship rules.
(b) A reference to a spouse or de facto partner in the definition of family member
in clause X.2(a) includes a former spouse or de facto partner.
X.3 Entitlement to unpaid leave
An employee is entitled to 5 days’ unpaid leave to deal with family and domestic
violence, as follows:
(a) the leave is available in full at the start of each 12 month period of the
employee’s employment; and
(b) the leave does not accumulate from year to year; and
(c) is available in full to part-time and casual employees.
Note: 1. A period of leave to deal with family and domestic violence may be less than
a day by agreement between the employee and the employer.
2. The employer and employee may agree that the employee may take more than
5 days’ unpaid leave to deal with family and domestic violence.
X.4 Taking unpaid leave
An employee may take unpaid leave to deal with family and domestic violence if the
employee:
(a) is experiencing family and domestic violence; and
[2018] FWCFB 3936
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(b) 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.
X.5 Service and continuity
The time an employee is on unpaid leave to deal with family and domestic violence
does not count as service but does not break the employee’s continuity of service.
X.6 Notice and evidence requirements
(a) Notice
An employee must give their employer notice of the taking of leave by the employee
under clause X. The notice:
(i) must be given to the employer as soon as practicable (which may be a
time after the leave has started); and
(ii) must advise the employer of the period, or expected period, of the
leave.
(b) Evidence
An employee who has given their employer notice of the taking of leave under
clause X must, if required by the employer, give the employer evidence that
would satisfy a reasonable person that the leave is taken for the purpose
specified in clause X.4.
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.
X.7 Confidentiality
(a) Employers must take steps to ensure information concerning any notice an
employee has given, or evidence an employee has provided under clause X.6 is
treated confidentially, as far as it is reasonably practicable to do so.
(b) Nothing in clause X 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.
[2018] FWCFB 3936
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Employers should consult with such employees regarding the handling of this
information.
X.8 Compliance
An employee is not entitled to take leave under clause X unless the employee complies
with clause X.
