[2018] FWCFB 2440
FAIR WORK COMMISSION

STATEMENT


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

Family and Domestic Violence Leave Clause
(AM2015/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

SYDNEY, 3 MAY 2018

4 yearly review of modern awards – family and domestic violence leave clause.

[1] In 2017, a Full Bench rejected an ACTU claim for paid family and domestic violence leave. 1 The Majority Decision (Gooley DP and Spencer C) went on to express the following preliminary views:

‘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.’ 2

[2] In a decision issued on 26 March 2018 (the March 2018 Decision) 3 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.

[3] The content of an unpaid family and domestic violence leave model term was discussed at conferences of interested parties held on 13, 18, 19 and 20 October 2017. The parties reached agreement on most elements of a model term. The March 2018 Decision dealt with the remaining issues in dispute. The major issue in contention was the amount of the leave entitlement.

[4] The Full Bench decided to provide five days’ unpaid leave per annum to all employees (including casuals) experiencing family and domestic violence. Such leave will be available in the event that an employee needs to do something to deal with the impact of the family and domestic violence and it is impractical for them to do that thing outside their ordinary hours of work. The Full Bench decided to defer its consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

[5] 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).

[6] The Full Bench also decided not to require employees to access any available paid leave entitlement before accessing unpaid family and domestic violence leave.

[7] 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 (at [303]) that the variation of modern awards to include the model term was necessary to ensure that such awards achieve the modern awards objective).

[8] The Full Bench exempted from this general finding the Australian Government Industry Award 2016, the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010, which were to be the subject of separate consideration.

[9] As noted above, three modern awards are to be the subject of separate considerations. A mention to deal with the programming of the hearings in respect of these awards was held on 1 May 2018. At the mention, the Australian Public Service Commission and the National Road Transport Association confirmed they no longer pressed their objections to the inclusion of the model term. 4 Accordingly, the model term (once finalised) will be inserted into all modern awards.

[10] A model term has been drafted to give effect to the March 2018 Decision (see Attachment A). Interested parties are invited to comment on the draft model term. As noted in the March 2018 Decision, such comments are to be directed to whether the draft model term accurately reflects the outcome of the decision; it is not an opportunity to relitigate matters that have been determined.

[11] Comments are to be sent to [email protected] by no later than 4pm Friday 1 June 2018. Any comments in reply are to be filed by 4pm Friday 15 June 2018.

[12] Liberty to apply.

[13] A further mention/conference will be held on Thursday 21 June in Sydney at 9am. Requests for video conference are to be directed to [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR606733>

ATTACHMENT A

Leave to deal with Family and Domestic Violence: Model Term

X.1 This clause applies to all full time, part-time and casual employees.

X.2 Definitions

X.3 Entitlement to unpaid leave

X.4 Taking unpaid leave

X.5 Service and continuity

X.6 Notice and evidence requirements

(c) Evidence

X.7 Confidentiality

X.8 Compliance

 1   [2017] FWCFB 3494.

 2   Ibid at [6].

 3   [2018] FWCFB 1691.

 4   Transcript – 1 May 2018 at PN69, PN83.