STATEMENT

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Family and domestic violence leave review 2021
(AM2021/55)

Family and domestic violence leave review 2021 – research program – final survey instrument.

[1] The Commission is conducting a review of the family and domestic violence leave terms in modern awards (FDV Review). The Commission’s research program for the FDV Review includes:

1. Literature and data review.

2. Analysis of the Workplace Agreements Database (WAD).

3. A qualitative assessment of the experience of family and domestic violence leave.

4. Survey analysis.

[2] This statement deals with the finalisation of the survey instrument and the accompanying email.

Survey

[3] A draft survey was published with a statement on 23 April 2021. 1 Interested parties were invited to comment on the draft survey by 13 August 2021.

[4] A conference was held on 7 October 2021 and transcript of the conference is available on the transcripts page of the FDV Review section of the Commission’s website.

[5] A revised draft survey and covering email were published with a statement issued on 19 October 2021 (19 October statement). 2 Parties were invited to file any further comments in relation to the draft survey and the covering email by 4.00 pm on Thursday 21 October 2021. Submissions were received from:

•  Australian Chamber of Commerce and Industry (ACCI)

•  Australian Council of Trade Unions (ACTU)

•  Australian Industry Group (Ai Group)

•  Council of Small Business of Australia (COSBOA)

[6] Ai Group proposes 3 amendments to the draft survey as follows:

•  Question 2: If a respondent selects the final option, they should be directed to question 4 of the survey, rather than question 3.

•  Question 8: If a respondent selects the second or third options, they should be directed to section 3 of the survey.

•  Question 10: If the respondent selects the first option, they should be directed to question 15 of the survey.

[7] We agree with the submissions in relation to questions 2 and 10 and have amended the survey accordingly. We do not agree with the submission in relation to question 8. Question 8 is set out below:

8. Have any of your employees taken unpaid family and domestic violence leave in the last 12 months?

[ ] Yes - Go to question 9

[ ] No

[ ] Don’t know

[8] Respondents who answer ‘no’ or ‘don’t know’ to this question should be directed to question 15 at the end of section 2, rather than being directed straight on to section 3. Question 15 is set out below and deals with other types of leave that employees may have taken and is not necessarily related to the taking of unpaid leave:

15. Have any of your employees taken other types of leave when they are experiencing family and domestic violence (other types of leave include annual leave and personal/carer’s leave)?

[ ] Yes

[ ] No

[ ] Don’t know

[9] The ACTU and ACCI submissions did not suggest any further amendments to the survey instrument. A final version of the survey is at Attachment A.

Covering email

[10] Ai Group and ACCI both proposed amendments to the opening paragraph of the draft covering email which currently reads:

The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards.

[11] Ai Group proposes replacing the opening paragraph with the following:

The Fair Work Commission (Commission) is conducting a review of modern awards in relation to family and domestic violence leave. It is also considering a claim advanced by the Australian Council of Trade Unions (ACTU), that all modern awards should be varied to include a new clause that provides all employees (including part-time and casual employees) with:

(a) 10 days of paid family and domestic violence leave per annum; and

(b) Once that entitlement is exhausted, 5 days of unpaid leave on each occasion that the employee is entitled to the leave.

[12] ACCI proposes a similar amendment as set out below:

The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards. As a part of this review, the Commission is also considering a claim advanced by the Australian Council of Trade Unions (ACTU), that all modern awards be varied to include a new clause that provides all employees (including part-time and casual employees) with:

(a) 10 days of paid family and domestic violence leave per annum; and

(b) Once that entitlement is exhausted, 5 days of unpaid leave on each occasion that the employee is entitled to the leave.

[13] ACCI proposes a further amendment under the heading ‘what will your responses be used for’ as follows:

The Commission will use your responses to understand how organisations employers assist employees who are experiencing family and domestic violence. This understanding will be also used by the Commission as part of its review of family and domestic violence leave, to assist it in determining whether provisions should be made for paid family and domestic violence leave in modern awards.

[14] Both the ACCI and Ai Group submit that their proposed amendments would provide appropriate context to employers responding to the survey.

[15] The ACTU opposes the changes proposed by Ai Group and ACCI and submits that no explanation is provided as to the relevance or purpose of providing this additional information.

[16] We have decided to adopt the changes proposed by ACCI. The parties will be able to address how these changes may affect the survey results in their submissions relating to the survey results.

[17] ACCI also propose a minor amendment to paragraph 2 of the covering email so that it refers to the relevant State or Territory Chamber of Commerce and Industry instead of to ACCI. This amendment has been made.

[18] COSBOA notes that the design of the survey has been largely completed and does not make any specific comment about the content of either the survey instrument or the covering email. COSBOA has offered to distribute the survey through their members in order to provide the perspective of small businesses. We thank COSBOA for this offer and have added them to the covering email as a relevant employer organisation.

[19] A final version of the covering email is set out at Attachment B.

Administering the survey

[20] As set out in the 19 October statement, the Commission will assist in administering the survey. A test link for the survey will be sent to parties following this statement.

[21] The timetable for the survey is set out below:

•  ACCI, Ai Group and COSBOA are to arrange for the Survey to be distributed to employers by 29 October 2021.

•  The Survey will close on 3 December 2021.

•  The results of the Survey, in the form of a report, are to be released by the Commission on 10 December 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735148>

ATTACHMENT A – Final version of the survey

The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards. The purpose of this survey is to understand how employers support employees who have experienced or are experiencing family and domestic violence and in particular, whether employees have access to either paid or unpaid family and domestic violence leave.

Complete this survey if:

•  You are an employer; and

•  You have employees covered by one or more modern awards and / or enterprise agreements.

You should only complete the survey once, regardless of how many times you have received an invitation to complete the survey.

How do I know if my employees are covered by a modern award?

You can find a complete list of modern awards on the Commission’s website. Each modern award includes a coverage clause which explains who is covered by the particular award.

If you’re not sure which modern award (or modern awards) might apply to your organisation, you can use the Fair Work Ombudsman’s Find my award tool on their website.

What will the survey ask?

The survey is divided into 4 sections. Depending on your leave policy and practices, you may not need to complete every section.

Section 1: Your organisation and your employees

•  This section includes questions about the number of employees you have, the number of your employees that are covered by a modern award, and the location and industry of your organisation.

Section 2: Unpaid family and domestic violence leave

•  This section includes questions about unpaid family and domestic violence leave entitlements accessed by your employees.

Section 3: Paid family and domestic violence leave

•  This section includes questions about any paid family and domestic violence leave available to your employees.

Section 4: Other family and domestic violence leave and support in your organisation

•  This section includes questions about any family and domestic violence leave policies that are in place in your organisation.

What will you do with my responses?

The Commission will use your responses to understand how employers with employees covered by modern awards support their employees who have experienced or are experiencing family and domestic violence.

Survey responses will remain confidential. We will not be able to identify you by your responses.

If you have any questions or concerns about your privacy or how the data will be used, please contact [email protected].

Section 1: Your organisation and employees

1. How many employees do you currently employ?

2. Are any of your employees covered by a modern award?

[ ] Yes all of them

[ ] Yes some of them

[ ] No- go to question 4

3. Which modern awards cover your employees?

If you’re not sure which modern award (or modern awards) might apply to your organisation, you can use the Fair Work Ombudsman’s Find my award tool on their website.

4. Are any of your employees covered by an enterprise agreement?

[ ] Yes all of them

[ ] Yes, some of them

[ ] No

5. How many of your employees are:

6. What industry does your business operate in (tick all that apply)?

7. In which state or territory is your organisation located (tick all that apply)?

[ ] Australian Capital Territory

[ ] New South Wales

[ ] Northern Territory

[ ] Queensland

[ ] South Australia

[ ] Tasmania

[ ] Victoria

[ ] Western Australia

Section 2: Unpaid family and domestic violence leave

Employers covered by the Fair Work system (the national system) are required to provide all employees access to 5 days’ unpaid family and domestic violence leave per year (Sections 106A-E of the Fair Work Act 2009).

8. Have any of your employees taken unpaid family and domestic violence leave in the last 12 months?

[ ] Yes - Go to question 9

[ ] No – Go to question 15

[ ] Don’t know– Go to question 15

9. How many employees have taken unpaid family and domestic violence leave in the last 12 months?

10. Thinking about your employees who have taken unpaid family and domestic violence leave, have any employees requested more than 5 days’ leave in a 12 month period?

[ ] No – Go to question 15

[ ] Yes - Please detail the number of days requested in total for each such employee below:

11. If employees requested more than 5 days’ unpaid family and domestic violence leave in a 12 month period, were the requests granted?

[ ] Yes – Go to question 13

[ ] No – Go to question 12

[ ] Only some were granted – Go to question 12

12. Why were some or all of the requests not granted? (select all that applied)

[ ] The employee was not eligible to take the leave.

[ ] The employee was eligible to take a form of paid leave.

[ ] The employee was eligible to take another form of unpaid leave.

[ ] The employee did not provide the evidence required.

[ ] The business was unable to accommodate the leave requested because of the operational and / or staffing consequences that it would have had.

[ ] Other:

13. Did you require employees taking unpaid paid family and domestic violence leave to provide any evidence of their need to take the leave?

[ ] No – Go to question 15

[ ] Yes – Go to question 14

[ ] Sometimes– Go to question 14

If you answered ‘yes’ or ‘sometimes’ – Please provide details of the type of evidence required (this might include court notices, medical certificates or documents issued by police or family violence support services etc.)

14. If you required employees to provide evidence of their need to take unpaid family and domestic violence leave, what steps did you take to keep that information confidential?

[ ] Consulted with the employee about how they wanted the information treated

[ ] Sighted the documents only, did not keep copies

[ ] Kept as a confidential employee record

[ ] Other (please provide details below)

15. Have any of your employees taken other types of leave when they are experiencing family and domestic violence (other types of leave include annual leave and personal/carer’s leave)?

[ ] Yes

[ ] No

[ ] Don’t know

Section 3: Paid family and domestic violence leave

Note: In this section, ‘paid family and domestic violence leave’ means a form of paid leave other than leave that the employee is entitled to under the NES or a modern award (e.g. personal / carer’s leave, compassionate leave, annual leave).

16. Does your organisation provide employees with paid family and domestic violence leave?

[ ] Yes – Go to question 17

[ ] No - Go to section 4

17. How many days of paid family and domestic violence leave can your employees take each year?

18. Is the paid leave available to all employees (full-time, part-time and casual)? (tick all that apply)

[ ] Full-time employees

[ ] Part-time employees, in full

[ ] Part-time employees, on a pro-rata basis

[ ] Casual employees

19. When can employees access paid family and domestic violence leave (tick all that apply)?

[ ] Attending medical appointments

[ ] Attending court hearings

[ ] Attending support services

[ ] Accessing legal or police services

[ ] Making arrangements for the safety of the employee (such as relocation)

[ ] The policy/entitlement does not specify the circumstances when employees can access paid leave

[ ] Other (please provide details below)

20. Do you require employees accessing paid family and domestic violence leave to provide any evidence of their need to take the leave?

[ ] No

[ ] Yes

[ ] Sometimes

If you answered ‘yes’ or ‘sometimes’ - please provide details of the type of evidence required (this might include court notices, medical certificates or documents issued by police or family violence support services etc.)

21. Is your organisation covered by an enterprise agreement that contains paid family and domestic violence leave entitlements?

[ ] Yes

[ ] No

Section 4: Other family and domestic violence leave and support in your organisation

As noted in Section 2, employers covered by the Fair Work system (the national system) are required to provide all employees access to 5 days’ unpaid family and domestic violence leave per year (Sections 106A-E of the Fair Work Act 2009).

Section 4 of this survey relates to the other forms of leave and / or support provided to employees who experience family and domestic violence.

22. Does your organisation have a policy in place to support employees who are experiencing family and domestic violence (this may be a formal written policy or an informal / unwritten policy)?

[ ] Yes – Go to question 23

[ ] No – Go to question 24

[ ] Not yet but we intend to create a policy – Go to question 24

If your organisation has a written policy in place, please provide a copy of the policy to the Commission, by email to [email protected]. The policy document will only be used by the Commission for analysis about the types of support covered in a family and domestic violence leave policy. It will be de-identified in any published reports and the name of your organisation will not be disclosed.

23. What type of support does your formal or informal policy include (tick all that apply):

[ ] Paid family and domestic violence leave entitlements

[ ] Unpaid family and domestic violence leave entitlements (in addition to the unpaid leave entitlements contained in the NES)

[ ] Access to annual leave, personal / carer’s leave or long service leave

[ ] Other financial support (such as support with relocation or court costs)

[ ] Flexible working arrangements (such as changes to duties or work location)

[ ] Employee assistance program or other support service

[ ] Training

[ ] Safety plan

[ ] Other, please provide details

24. Has your organisation received a request for leave or another form of support from one or more employees experiencing family and domestic violence in the past 2 years?

[ ] Yes – Go to question 25

[ ] No – Go to question 26

[ ] Don’t know – Go to question 26

25. Did your organisation provide the employee with any form of leave or support, in addition to leave or support required by the Fair Work Act 2009, an enterprise agreement or modern award?

[ ] Yes – in all instances

[ ] Yes – in some instances

[ ] No

[ ] Don’t know

26. If your organisation received a request for leave or another form of support from an employee experiencing family and domestic violence, would your organisation provide the employee with leave or support, in addition to what is required by the by the Fair Work Act 2009, any applicable enterprise agreement or modern award?

[ ] Yes

[ ] No

[ ] It would depend on the circumstances

[ ] Don’t know

END SURVEY. THANK YOU FOR PARTICIPATING.

ATTACHMENT B – Final covering email

Dear X,

The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards. As a part of this review, the Commission is also considering a claim advanced by the Australian Council of Trade Unions (ACTU), that all modern awards be varied to include a new clause that provides all employees (including part-time and casual employees) with:

(a) 10 days of paid family and domestic violence leave per annum; and

(b) Once that entitlement is exhausted, 5 days of unpaid leave on each occasion that the employee is entitled to the leave.

You have been chosen to take part in this survey as a member of the [insert name of State or Territory Chamber of Commerce and Industry]/the Australian Industry Group/Council of Small Business of Australia (select relevant employer org). Help provide your insights and feedback by completing this survey before 3 December 2021.

What will the survey ask?

The survey will take less than 10 minutes to complete and asks about four main topics:

1. Your organisation and your employees. For example, where your organisation is, how many employees you have and how many employees are covered by a modern award or an enterprise agreement.

2. The unpaid family and domestic violence leave entitlement in the Fair Work Act 2009. This includes questions about any unpaid leave requested by your employees, if you granted the leave and the types of evidence you required from your employees.

3. Any paid family and domestic violence leave provided by your organisation. This includes questions about who can access the paid leave and when they can access it.

4. Any other family and domestic violence leave or support available in your organisation. This includes questions about any formal or informal policies you have in place, the types of support provided to employees and whether you have received any requests from employees for support.

What will your responses be used for?

The Commission will use your responses to understand how employers assist employees who are experiencing family and domestic violence. This understanding will be also used by the Commission as part of its review of family and domestic violence leave, to assist it in determining whether provisions should be made for paid family and domestic violence leave in modern awards.

The survey is conducted by the Commission and your responses are anonymous.

Click here to complete the survey.

If you have any questions or concerns about your privacy or how the data will be used, please contact [email protected].

 1   [2021] FWC 2276.

 2   [2021] FWCFB 6028.