STATEMENT

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)

4 yearly review of modern awards – leave to deal with family and domestic violence model term – Fair Work Amendment (Family and Domestic Violence Leave) Act 2018.

[1] On 11 February 2019, the Full Bench issued a statement (the February Statement) 1 about the interaction between the ‘leave to deal with family and domestic violence’ model term included in all modern awards in July 20182 and the NES entitlement to ‘unpaid family and domestic violence leave’ included in the Fair Work Act 2009 (the Act) after the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 received Royal Assent on 12 December 2018.

[2] In the February Statement the Full Bench expressed the provisional view that the model term should be deleted from exposure drafts produced as part of the 4 yearly review and replaced with the following:

X. Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES

[3] The Full Bench also expressed the provisional view that the model term should remain in modern awards until they are replaced by the exposure drafts later this year.

[4] Interested parties were provided an opportunity to file any objection to the provisional views. One submission was received from the Australian Council of Trade Unions (ACTU) 3. The ACTU object to the deletion of the model term on the following grounds:

•  The NES entitlement has no equivalent to the Note under cl X.7 which deals with confidentiality;

•  The NES entitlement has no equivalent to the Note under cl X.6 which deals with evidence;

•  The coverage of de facto partners is narrower in the NES entitlement than the model term. The NES entitlement excludes non-resident, current de facto partners, while the model term does not;

•  The model term has no equivalent of s.106E of the Act. Section 106E provides that ‘what constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of section 85 and Subdivisions B and C.’ The ACTU submit that, the meaning of a ‘day’ in the context of paid personal/carers leave in s 96(1) of the Act, including the effect (if any) of s 106E, remains the subject of ongoing Federal Court proceedings in Mondelez Australia Pty Ltd v AMWU and Ors VID731/2018.

[5] Interested parties are invited to file submissions in response to the ACTU by 4pm on Friday 17 May 2019. Submissions should be sent to [email protected].

[6] This matter will be determined on the papers unless any party requests a formal hearing by 4pm on Friday 17 May 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 767.

 2   [2018] FWCFB 3936.

 3   ACTU submission dated 18 March 2019.