Family and domestic violence leave review 2021

[2022] FWC 357

FAIR WORK COMMISSION

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)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 18 FEBRUARY 2022

Family and domestic violence leave review 2021 – mention –digital court book.

This matter is listed for Mention at 9:30 am on Wednesday 23 February 2022.

Parties are reminded that, prior to the Mention, they are to have informed each other of the witnesses required for cross-examination, and prepared a joint hearing plan addressing the order of witnesses and each parties’ approximate estimates of time for cross-examination. This hearing plan should be sent to Chambers.Ross.j@fwc.gov.au by 2pm on Tuesday 22 February 2022.

Digital Court Book

The Commission has prepared a Digital Court Book (DCB) to assist interested parties at the hearings commencing on Monday 28 February 2022. The DCB combines and indexes all materiel filed for this hearing into a singular PDF document. A draft index for the DCB which includes all material filed to date is attached to this statement. Parties can comment on the draft index at the mention.

The Commission will publish the final DCB after the mention, taking into account any feedback from the parties. The final DCB will include the following functionality:

· The index page will be hyperlinked to the corresponding page number in the DCB. On the index page, parties will be able to click on the document title or page number to jump to that section of the DCB.

· The DCB has been bookmarked. Parties will be able to open the DCB and click the Bookmark icon on the left side of the screen to open the Bookmarks panel. A list of documents will appear, and parties will be able to click on any of these bookmarked documents to jump to it directly.

The Full Bench will be using the DCB during the hearings listed from 28 February 2022 to 4 March 2022. When referencing page numbers in the DCB parties should refer to the red number located at the bottom centre of each page.

The Commission will also be publishing a Digital Research Book which will include all of the material from the Research Reference List with the exception of any material that requires a subscription. The Digital Research Book will be published early next week.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission reviewed a matter concerning family and domestic violence leave. The review was conducted under section 157 of the Fair Work Act 2009, which allows the Commission to vary modern awards if necessary to achieve the modern awards objective. The matter was heard by Justice Ross in Melbourne on 18 February 2022. The case involved the review of family and domestic violence leave provisions within modern awards, and the Commission aimed to ensure that these provisions were adequate and effective in supporting employees who are victims of family and domestic violence.

The legal issues before the court involved assessing the adequacy of the existing family and domestic violence leave provisions in modern awards. The court had to determine whether these provisions met the objectives of supporting employees who are victims of family and domestic violence, ensuring their safety and well-being, and enabling them to manage their leave in a manner that is sensitive to their circumstances. The court also had to consider whether any changes were necessary to improve the effectiveness of these provisions.

In its reasoning, the court considered the submissions from various stakeholders, including unions, employer groups, and victim support organisations. The court examined the evidence provided regarding the experiences of employees who had used family and domestic violence leave and the challenges they faced. The court also took into account relevant research and international best practices. Based on this analysis, the court concluded that while the existing provisions were a good starting point, there were areas where improvements could be made to better support employees who are victims of family and domestic violence. The court proposed several amendments to the modern awards to enhance the leave provisions.

The court ordered that the modern awards be amended to include the proposed changes. These amendments aimed to provide clearer guidance on the eligibility criteria for family and domestic violence leave, ensure that leave is granted without prejudice to the employee, and provide additional support mechanisms for employees during their leave. The court also directed that the amendments be implemented in a phased manner to allow for adequate consultation and transition. The final orders of the court ensured that the modern awards would better support employees who are victims of family and domestic violence, reflecting the objectives of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established