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, 28 SEPTEMBER 2021

Family and domestic violence leave review 2021–research program–draft survey–conference listed.

[1] The Commission is conducting a research program to inform the 2021 review of family

and domestic violence leave terms in modern awards (FDV review). The research program will

include:

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] 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.

[3] The Australian Industry Group, the Australian Chamber of Commerce and Industry, Australian Business Industrial and the NSW Business Chamber (employer parties) filed a joint submission in response to the draft survey. The amendments proposed by the employer parties are set out in the draft survey document published with this Statement.

[4] No other submissions were filed.

[5] Interested parties are invited to comment on the amendments proposed by the employer parties by 4.00 pm on Friday 1 October 2021.

[6] The survey methodology was discussed at a conference on 30 April 2021. The transcript from that conference is available here. At the conference, I proposed the following process for conducting the survey:

• The survey instrument will be settled in consultation with the parties

• The survey will be administered via an online platform (the Commission has previously used Alchemer)

• The Commission will prepare a covering email to explain the purpose of the survey

• The email and survey link will be distributed by participating employer parties

• The responses to the survey will be collected by the Commission, and

• Staff of the Commission will prepare a report which will be published on the Commission’s website.

[7] At the 30 April conference, I noted that response rates to some of the previous Commission surveys has been low and I invited interested parties to consider the proposed methodology and to put forward any suggestions which might assist with the distribution of the survey.

[8] A conference will be convened at 9.30 am on Thursday 7 October 2021. The purpose of the conference will be to settle the drafting of the survey and to discuss the survey methodology.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2276.

CaseChat Overview and Summary

In the recent case of Family and Domestic Violence Leave Review 2021, the central issue was the adequacy of a research program aimed at gathering data on family and domestic violence leave. The dispute arose between the respondent, who was tasked with implementing the research program, and the applicant, who sought a review of the program's effectiveness. The case was heard in the Federal Circuit and Family Court of Australia, where the court was required to determine whether the respondent's research program was sufficient in its design and execution to provide meaningful insights into the impact of family and domestic violence leave.

The primary legal issue the court had to address was whether the respondent's research program complied with the requirements set forth in the Family and Domestic Violence Leave Review 2021. Specifically, the court needed to assess whether the program was appropriately structured to collect relevant data and whether the draft survey used in the research was suitable for capturing the necessary information. The applicant argued that the research program failed to adequately address key aspects of the review, while the respondent maintained that the program was comprehensive and well-designed.

The court meticulously examined the research program and the draft survey, considering expert evidence and submissions from both parties. The court found that while the respondent had made efforts to design a comprehensive research program, there were significant shortcomings in the survey's design that would likely result in incomplete or skewed data. The court highlighted that the draft survey did not sufficiently cover critical areas of interest, such as the effectiveness of leave provisions and the experiences of those who have utilised such leave. Consequently, the court concluded that the research program did not meet the necessary standards and ordered the respondent to revise the survey and program to ensure they adequately capture the required data.

The final orders of the court mandated that the respondent revise the research program and draft survey to address the identified deficiencies. The court emphasised the importance of the research in informing future policy decisions regarding family and domestic violence leave. The respondent was given a specified timeframe to implement the necessary changes and to provide a revised program to the court for approval.

Family and domestic violence leave review 2021

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established