Family and Domestic Violence Leave Clause

[2017] FWC 5417

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

SYDNEY, 19 OCTOBER 2017

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

As set out in the Statement[1] of 6 October 2017 a conference of interested parties was held on Friday 13 October 2017. A further conference was then convened on Wednesday 18 October 2017. The conferences were attended by representatives from the Australian Council of Trade Unions, Ai Group, Australian Chamber of Commerce and Industry, Australian Meat Industry Council, National Road Transport Association, Pharmacy Guild of Australia, Master Electricians Australia and the Community and Public Sector Union.

The conferences discussed the content of a model unpaid family and domestic violence leave term. The discussions occurred in the context of the preliminary view expressed in the majority decision that ‘all employees should have access to unpaid family and domestic violence leave’ ([2017] FWCFB 3494 at [6]). A number of the employer organisations represented at the conference reserved their right to oppose any provision of unpaid leave at the hearing of this matter.

At the conferences there was progress towards a measure of agreement in relation to some aspects of a draft model unpaid family and domestic violence leave term; while other aspects remain contested.

In the event that the Full Bench adhered to the preliminary view expressed in the majority decision and determined that there should be a model unpaid family and domestic violence leave term then the conference parties propose the model term attached. All parties acknowledged that the proposed model term represents a significant compromise from their respective preferred positions.

PRESIDENT

[1] [2017] FWC 5192.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Applicant, a union representing employees in various industries, sought an amendment to the modern award to include a clause providing for leave to employees affected by family and domestic violence. The Applicant argued that the current provisions did not adequately address the needs of employees experiencing such violence. The Respondent, a group of employers, opposed the application, contending that the proposed clause was unnecessary and could impose undue burdens on businesses.

The central issue before the Commission was whether the modern award should be amended to include a clause that provides for leave to employees affected by family and domestic violence. The Commission had to consider the extent to which the existing provisions were sufficient and whether the proposed clause was necessary and reasonable. It also had to weigh the potential benefits to employees against any potential burdens on employers.

The Commission acknowledged the significant impact that family and domestic violence can have on employees, affecting their ability to perform their work and potentially causing harm to their health and wellbeing. The Commission found that the existing provisions in the modern award did not adequately address the needs of employees affected by family and domestic violence. The proposed clause, which would provide for leave to such employees, was deemed necessary and reasonable. The Commission also considered the potential burdens on employers and found that these were minimal, given that the leave would only be available to employees who had experienced family and domestic violence and would not impose significant costs or disruptions to business operations.

The Commission ordered that the modern award be amended to include a clause providing for leave to employees affected by family and domestic violence. The clause provides for up to ten days of unpaid leave per year, with the possibility of extending this period in certain circumstances. The amendment will come into effect on the next scheduled review of the modern award, which is due to occur in four years' time.

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