| [2017] FWC 3696 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Family & Domestic Violence Leave and Family Friendly Work Arrangements clauses
(AM2015/1 and AM2015/2)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 14 JULY 2017 |
4 yearly review - Family & Domestic Violence Leave Clause and Family Friendly Work Arrangements clauses.
[1] Matter AM2015/1 concerns a claim by the Australian Council of Trade Unions (ACTU) for a paid family and domestic violence leave clause to be inserted into every modern award.
[2] On 30 June 2017 I issued a Decision expressing my view that the Fair Work Act 2009 (Cth) (FW Act) permitted Deputy President Gooley and Commissioner Spencer to hand down their decision(s) in this matter and that their decision(s), taken together with the decision in the matter of former Vice President Watson, would comprise the Full Bench decision in matter AM2015/1 1.
[3] On 3 July 2017 Deputy President Gooley and Commissioner Spencer handed down their Decision 2. Taking their Decision together with the Decision of former Vice President Watson3, the unanimous decision of the Full Bench was to reject the ACTU’s claim. However, Deputy President Gooley and Commissioner Spencer expressed a preliminary view that:
‘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.’ 4
[4] As Deputy President Gooley and Commissioner Spencer observe, at [120] of their decision, interested parties have not yet been given an opportunity to make submissions or call evidence in respect of their preliminary views and further proceedings will be necessary to provide that opportunity.
[5] In my Decision of 30 June 2017 I also expressed my view that s.622 of the FW Act would be enlivened for the purposes of any dealing with matter AM2015/1 other than the completion of the process of the Full Bench delivering its decision 5. Accordingly, I consider that the FW Act provides for me to reconstitute the Full Bench for the purpose of conducting further proceedings in matter AM2015/1 in relation to the preliminary views of Deputy President Gooley and Commissioner Spencer.
[6] I have reconstituted the Full Bench in matter AM2015/1 to comprise me as presiding member, Deputy President Gooley and Commissioner Spencer.
[7] I will list the matter for Mention before me at 11am on Friday 21 July 2017, in Sydney, to allow the parties to make submissions as to the appropriate directions for the further proceedings. The parties are also asked to consider whether any further hearing in this matter be heard concurrently with matter AM2015/2. I also flag at this point that, to facilitate these further proceedings, consideration could be given to Commission research staff producing a summary of evidence in matter AM2015/1 to date and also issues papers on various aspects of family and domestic violence leave.
[8] Matter AM2015/2 concerns a claim by the ACTU to vary all modern awards to provide employees with an entitlement to temporary reduced hours to accommodate their parenting and/or caring responsibilities.
[9] On 29 May 2017 I issued a Statement dealing with this and other matters, in which I indicated that I would reconstitute the Full Bench in matter AM2015/2 to comprise Deputy President Gooley, Commissioner Spencer and a new Member, and that the reconstituted Full Bench could consider whether any changes should be made to programming 6.
[10] The Full Bench in matter AM2015/2 has been reconstituted to comprise me as presiding member, Deputy President Gooley and Commissioner Spencer.
[11] I note that Amended Directions in this matter were issued by former Vice President Watson on 22 December 2016 (the Amended Directions) and that, at present the weeks of 10 and 17 October 2017 are reserved for evidence and cross-examination.
[12] The ACTU lodged initial submissions and witness statements on 10 May 2017 and on 18 May 2017 the ACTU lodged a revised proposed family friendly working hours’ clause. The revised clause is set out at Attachment A and the list of witnesses is at Attachment B.
[13] On 12 July 2017 the Ai Group wrote to the Commission seeking an extension of time to file submissions and evidence in reply until 6 October 2017. The Ai Group’s correspondence also proposed amending paragraph 4 of the Amended Directions to require submissions and evidence in reply by 27 October 2017 and further that the hearing dates in October be vacated. ABI & NSWBC also wrote to the Commission on 12 July 2017 supporting the Ai Group’s proposed variation to the Amended Directions. On 13 July 2017, the ACTU wrote to the Commission noting that they do not oppose the Ai Group’s extension but request to be heard on a number of matters before an amended timetable is finalised 7.
[14] I will list the matter for Mention before me at 11am on Friday 21 July 2017, in Sydney for further consideration of the programming of the matter including the Ai Group’s request as set out above.
PRESIDENT
X.1 Family Friendly Working Hours for Parents and Carers
X.1.1 An employee is entitled to Family Friendly Working Hours to accommodate their parenting responsibilities and/or caring responsibilities in accordance with this clause.
X.2 Right to Revert to Former Working Hours
X.2.1 An employee with parenting responsibilities on Family Friendly Working Hours has a right to revert to their former working hours up until the child is school aged; or at a later time by agreement.
X.2.2 An employee with caring responsibilities on Family Friendly Working Hours has a right to revert to their former working hours for a period not exceeding two years from the date of the commencement of the Family Friendly Working Hours; or at a later time by agreement.
X.3 Family Friendly Working Hours arrangement
X.3.1 An employee shall give their employer reasonable notice in writing of their intention to access Family Friendly Working Hours under clause X.1, including at least the following matters:
(a) the period of time that the employee requires Family Friendly Working Hours;
(b) the specific days and hours of work that the employee wishes to work during the Family Friendly Working Hours period;
(c) the date on which the employee wishes to revert to their former working hours under clause X.2.
X.3.2 An employer will implement the Family Friendly Working Hours arrangement provided by the employee under X.3.1, or a variation of the arrangement agreeable to the employee.
X.4 Definitions
X.4.1 An employee has ‘parenting responsibilities’ if the employee has responsibility (whether solely or jointly) for the care of a child of school age or younger.
X.4.2 An employee has ‘caring responsibilities’ if the employee is responsible for providing personal care, support and assistance to another individual who needs it on an ongoing or indefinite basis because that other individual:
(a) has a disability; or
(b) has a medical condition (including a terminal or chronic illness); or
(c) has a mental illness; or
(d) is frail and aged.
X.4.3 ‘Employee’ means a full-time, part-time or casual employee.
X.4.4 ‘Family Friendly Working Hours’ means an employee’s existing position:
X.4.4(a) on a part-time basis if the employee’s existing position is full-time; or
X.4.4(b) on a reduced hours basis, if the employee’s existing position is part-time or casual.
X.4.5 ‘Family Friendly Working Hours arrangement’ means either the written document provided by the employee under clause X.3.1, or an agreed variation of that arrangement recorded in writing and provided to the employee.
X.4.6 ‘Existing position’ means the position, including status, location and remuneration, that the employee held immediately before the commencement of the Family Friendly Working Hours.
X.4.7 ‘Former working hours’ in clauses X.2.1, X.2.2 and X.3.1(c) means the number of hours that the employee worked immediately before the commencement of the Family Friendly Working Hours.
X.5 Replacement Employees
X.5.1 An employee engaged to replace an employee on Family Friendly Working Hours under this clause must be informed of the temporary nature of their engagement.
X.6 Eligibility Requirements
X.6.1 To be entitled to Family Friendly Working Hours under this clause, an employee must:
X.6.1(a) Have completed at least six months continuous service with the employer; and
X.6.1(b) If required by the employer, provide evidence that would satisfy a reasonable person that the employee has parenting responsibilities and/or caring responsibilities that meet the relevant definition in clause X.4. Such evidence may include a document or certificate from a health professional/practitioner or relevant services provider, or a statutory declaration.
X.6.2 An employee is not required to exhaust any existing leave entitlements before being entitled to Family Friendly Working Hours under this clause.
1. Expert Statement of Professor Siobhan Austen
2. Expert Statement of Dr Ian Watson
3. Expert Statement of Dr Jill Murray
4. Witness Statement of Andrea Sinclair
5. Witness Statement of Ashlee Czerkesow
6. Witness Statement of Jessica van der Hilst
7. Witness Statement of Julia Johnson
8. Witness Statement of Katie Routley
9. Witness Statement of Michelle Ogulin
10. Witness Statement of Monika Bowler
11. Witness Statement of Nicole Mullan
12. Witness Statement of Perry Anderson
13. Witness Statement of Sacha Hammersley
14. Witness Statement of Sherryn Jones-Vadala
15. Witness Statement of Witness 1
1 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWC 3480 at [32].
2 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 3494.
3 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 1133 at [146
4 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 3494 at [6].
5 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWC 3480 at [33].
7 Australian Council of Trade Unions letter, 13 July 2017.
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