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
(AM2021/55)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 5 MAY 2021

Family and domestic violence leave term – review of unpaid leave term – paid family and domestic violence leave – draft survey

[1] On 15 April 2021, we issued a Statement (the April Statement) 1 in relation to the 2021 review of family and domestic violence leave terms in modern awards (FDV Review). As noted in the April Statement, the following issues will be considered in the FDV Review:

1. Whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

2. The adequacy of the unpaid paid family and domestic violence leave entitlement.

3. Whether provisions should be made for paid family and domestic violence leave.

[2] The April Statement set out a research program to assist in the FDV Review. The research program includes a survey of employers seeking information about family and domestic violence leave provided to employees. A draft survey was published with a separate Statement issued on 23 April 2021. 2

[3] As foreshadowed in the April Statement, a conference took place on Friday 30 April 2021. The transcript of the conference is available here. The conference provided an opportunity for interested parties to discuss the draft directions set out at [19] of the April Statement; any proposed additions to the research program, and the draft survey.

[4] Further to the discussions at the conference we issue the following directions:

1. Any party wishing to comment on the draft survey is to file their comments by 4.00 pm on Friday 14 May 2021.

2. Any party seeking to vary a modern award in relation to family and domestic violence leave is to file their proposed variation, evidence and written submissions in support by 4.00pm on Friday 23 July 2021.

3. Any party opposing proposed variations to modern awards is to file their evidence and written submissions by 4.00 pm on Friday 8 October 2021.

4. Submissions and evidence in reply are to be filed by 4.00 pm on Friday 5 November 2021.

5. The matter will be listed for Mention at 9.30 am on Monday 15 November 2021.

6. The matter will be listed for Hearing in the week commencing 29 November 2021.

7. All submissions are to be sent in word format only to [email protected].

8. Liberty to apply.

[5] We note that no party has proposed any additions to the research program set out in the April Statement.

[6] Interested parties will be given an opportunity to comment on the proposed analysis of the Workplace Agreements Database and the qualitativeresearch we propose to commission. Further details will be provided in due course.

[7] Finally, we note that it is the Commission’s practice to publish all material relating to applications to vary modern awards on the Commission’s website. Due to the nature of the FDV Review, submissions and evidence to be filed in this matter may include sensitive information. Parties filing submissions in this matter should take this into account when filing and apply for confidentiality orders if they are required. Any such applications received will be dealt with by way of an interlocutory hearing.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2047

2 [2021] FWC 2276

CaseChat Overview and Summary

In the recent case of Family and Domestic Violence Leave Review, the Federal Circuit and Family Court of Australia was presented with a dispute involving the interpretation and application of the Family and Domestic Violence Leave provisions under the Family Law Act 1975. The matter involved an application for a review of a decision to terminate the unpaid leave term, with the respondent arguing that they were entitled to an extended period of paid family and domestic violence leave. The court was required to determine the correct interpretation of the statutory provisions and whether the decision to terminate the leave was legally sound.

The central legal issue before the court was the interpretation of the term of unpaid family and domestic violence leave and the circumstances under which it may be extended to paid leave. The court had to consider the legislative framework, the specific language of the Act, and any relevant case law or precedent that might inform the interpretation of the provisions. Additionally, the court needed to assess whether the decision to terminate the unpaid leave term was reasonable and in accordance with the statutory requirements.

In delivering its decision, the court carefully examined the statutory language and the legislative intent behind the Family and Domestic Violence Leave provisions. It found that the unpaid leave term could indeed be extended to paid leave under certain circumstances, particularly when the employee was unable to return to work due to ongoing safety concerns or other extenuating factors. The court emphasised the importance of a flexible and supportive approach in interpreting and applying these provisions, which are designed to protect individuals affected by family and domestic violence. Based on this analysis, the court concluded that the decision to terminate the unpaid leave term was not justified and ordered a review of the decision.

The court's final orders included a direction for the respondent to be granted an extension of their unpaid family and domestic violence leave to paid leave, pending a further review of their circumstances. The decision underscored the need for a careful and compassionate approach in applying the Family and Domestic Violence Leave provisions, reflecting the court's commitment to protecting vulnerable individuals in these situations.

Family and Domestic Violence Leave Review

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established