Family and domestic violence leave review 2021
[2023] FWCFB 24
•2 FEBRUARY 2023
| [2023] FWCFB 24 |
| 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)
| ACTING PRESIDENT HATCHER | SYDNEY, 2 FEBRUARY 2023 |
Family and domestic violence leave review 2021 – changes to National Employment Standards – passage of Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 – paid family and domestic violence leave – provisional view – draft determinations issued.
Background
On 30 April 2021, the Fair Work Commission (Commission) commenced a review of the family and domestic violence leave (FDV leave) provisions in modern awards.[1] The review arose out of the 4 yearly review of modern awards and a proposed review of FDV leave in June 2021 foreshadowed by the Full Bench in its decision issued on 26 March 2018.[2]
During the 4 yearly review, the Full Bench inserted a model term in awards which provided an entitlement to five days’ unpaid leave to deal with family and domestic violence. The model term was later replaced with a reference to the National Employment Standards (NES) following the enactment of the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth).[3]
On 12 April 2021, the Australian Council of Trade Unions (ACTU) wrote to the Commission requesting that the foreshadowed review of the operation of the unpaid FDV leave entitlement and a revisiting of whether provision should be made for paid leave, commence urgently.[4]
Following commencement of the FDV leave review, directions were issued for the filing of submissions and evidence.[5] A hearing of the evidence took place on 1 March 2022 and a hearing of final submissions took place on 8 April 2022. On 16 May 2022, the Full Bench issued a decision concluding the merits strongly favour an FDV leave entitlement and reached a provisional view as to the characteristics of a model FDV leave term. The Full Bench set out next steps to be taken in the proceedings directing parties to formulate a draft model FDV leave term based on its provisional view. At a ‘global’ level of assessment, the Full Bench also expressed a provisional view that inserting a provisional model term providing 10 days’ paid FDV leave into modern awards is necessary to achieve the modern awards objective.[6]
In August 2022, following the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 into Parliament, the Full Bench issued a statement advising it did not propose to take further steps in the 2021 FDV review.[7]
Enactment of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (the Paid FDV Leave Act) was subsequently enacted and received Royal Assent on 9 November 2022. The Paid FDV Leave Act amends the NES to the replace the existing employee entitlement to five days of unpaid FDV leave with an entitlement to 10 days of paid FDV leave in a 12-month period for full-time, part-time and casual employees.
The changes come into effect for:
·employers with 15 or more employees— on 1 February 2023 and
·employers with fewer than 15 employees—1 August 2023.
Inconsistency with the NES
There are currently 121 modern awards containing a reference to the unpaid NES entitlement and one additional award which retains the model clause from the 4 yearly review (the Australian Government Industry Award 2016). Once the entitlement to 10 days of paid FDV leave takes effect, these references to unpaid FDV leave will be inconsistent with the NES.
Section 55(1) of the Fair Work Act 2009 (Cth) (FW Act) prohibits a modern award from excluding the NES or any provision of them and s 56 provides that a term of a modern award has no effect to the extent that it contravenes s 55.
To maintain consistency with the NES, it is our provisional view to remove the word ‘unpaid’ where it appears in the relevant FDV provisions in those 121 modern awards. We also consider it appropriate to replace the model term in the Australian Government Industry Award 2016 with a reference to the NES, as amended.
There are two further issues relating to the consistency of terms in awards with the new entitlement to paid FDV leave. Two types of terms have the appearance of excluding certain employees from receiving an entitlement to paid FDV leave:
1.Terms that state that the casual loading is paid instead of paid leave entitlements; and
2.Terms that limit the applicability of award provisions to certain classes of workers.
Casual loading issue
There are 16 awards containing casual loading provisions which state that the casual loading is paid instead of entitlements to paid leave:
·Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020
·Australian Government Industry Award 2016
·Black Coal Mining Industry Award 2020
·Broadcasting, Recorded Entertainment and Cinemas Award 2020
·Clerks—Private Sector Award 2020
·Corrections and Detention (Private Sector) Award 2020
·Health Professionals and Support Services Award 2020
·Horse and Greyhound Training Award 2020
·Local Government Industry Award 2020
·Mannequins and Models Award 2020
·Plumbing and Fire Sprinklers Award 2020
·Professional Employees Award 2020
·Social, Community, Home Care and Disability Services Industry Award 2010
·Sporting Organisations Award 2020
·State Government Agencies Award 2020
·Water Industry Award 2020
An example of this type of clause can be seen at clause 11.2(b) of the Black Coal Award 2020 (underlining added):
(b) The casual loading is paid instead of the leave entitlements under this award.
Other awards contain a provision that states that the casual loading is in compensation for paid leave. An example of this can be found in the Local Government Industry Award 2020 at clause 11.1 (underlining added):
Casual employees will be paid…an additional loading of 25% of the minimum hourly rate for the classification in which they are employed as compensation instead of paid leave under this award and the NES.
This type of provision was reconstructed into a note as part of the plain language process conducted by the Commission during the 4 yearly review. The Plain Language Guidelines state:
Notes may be included in order to provide factual information, including information explaining how a provision or set of provisions are to be used or what their function or role is, or to point the reader to a relevant provision of the award.[8]
The drafting of the casual loading clause in these awards raises the potential for misinterpretation as to whether the paid FDV entitlement extends to casual employees. To overcome this issue and to ensure consistency with the Plain Language principles, it is our provisional view to remove wording that has the appearance of restricting casual employees’ access to paid FDV leave and include for clarity the following note in the 16 awards affected:
NOTE: The casual loading is payable instead of entitlements from which casuals are excluded by the terms of this award and the NES. See Part 2-2 of the Act.
Terms that limit applicability of award provisions to classes of employees
Three further awards have been identified as containing terms, which by their construction, appear to restrict access of some employees to FDV leave:
· Business Equipment Award 2020
· Timber Industry Award 2020
· Seagoing Industry Award 2020
The Business Equipment Award 2020 exempts employees in the clerical stream from all other provisions in the award except those listed in clause 16.2. We propose to vary this clause to include a reference to clause 27—Family and domestic violence leave.
Similarly, clause 13.4 of the Timber Industry Award 2020 exempts pieceworkers from all other provisions in the award except those listed in the clause. We propose to vary clause 13.4 to include a reference to clause 32—Family and domestic violence leave.
Clause 8.3 of the Seagoing Industry Award 2020 (Seagoing Award 2020) excludes employees on vessels granted a temporary licence from several of parts of the award, including Part 5—Leave and Public Holidays containing the current unpaid FDV leave term. Leave and public holiday entitlements for employees on vessels granted a temporary licence are contained in Schedule A. Schedule A does not include a reference to FDV leave.
The predecessor to Schedule A of the Seagoing Award 2020 is Part B of the Seagoing Industry Award 2010. The Seagoing Industry Award 2010 was made during the award modernisation process conducted by the Australian Industrial Relations Commission (AIRC). The genesis of Part B of the Seagoing Industry Award 2010 is discussed by the AIRC in its decision of 4 December 2009.[9] In that decision, the Full Bench explained that, given uncertainty in respect of whether the Fair Work Regulations 2009 (Cth) (Regulations) would be amended to extend the scope of the Act to foreign vessels granted a permit under the Navigation Act 1912 (Cth) (Navigation Act), and which may regularly move in and out of the Australian jurisdiction, the Seagoing Industry Award 2010 would consist of separate two parts. Part B would apply to foreign ships operating under a permit system and commence from 1 January 2011, and Part A would apply to all other ships and commence from 1 January 2010.[10] Part B would contain a set of more basic conditions that the AIRC considered were capable of application to permit ships.
On 1 January 2010 an amendment to the Regulations commenced operation which extended the scope of the Act to ships operated under a licence under the Navigation Act. On 22 June 2011, the relevant provisions were further amended to ensure the Act would continue to apply to ships engaging in coastal trading following the commencement of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) on 1 July 2012.[11] Regulations 1.15D and 1.15E, as amended, continue to operate and provide:
1.15D Modification of application of Act—ships engaged in innocent passage
For section 32 of the Act, the Act does not apply in relation to all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including such waters within the limits of a State or Territory to the extent to which its application would be inconsistent with a right of innocent passage or transit passage being exercised by a ship other than:
(a) an emergency licensed ship; or
(b) a general licensed ship; or
(c) a temporary licensed ship; or
(d) a transitional general licensed ship; or
(e) a majority Australian‑crewed ship.
…
1.15E Extension of Act to the exclusive economic zone and the continental shelf—ships
(1) For subsection 33(3) of the Act, the Act is extended to and in relation to each of the following ships in the exclusive economic zone or the waters above the continental shelf:
(a) an emergency licensed ship;
(b) a general licensed ship;
(c) a temporary licensed ship;
(d) a transitional general licensed ship.
(2)For subsection 33(3) of the Act, the Act is extended to and in relation to a majority Australian‑crewed ship in the exclusive economic zone or the waters above the continental shelf.
Note:The extension of this Act to emergency licensed ships, general licensed ships, temporary licensed ships, transitional general licensed ships and majority Australian‑crewed ships in the exclusive economic zone and the waters above the continental shelf (including provisions relating to compliance and enforcement, administration and right of entry by reason of the extension of the rest of the Act, so far as it relates to the specified provisions) is subject to:
(a) Australia’s international obligations relating to foreign ships; and
(b) the concurrent jurisdiction of a foreign State.
Clause 8.3 of the Seagoing Award 2020, while excluding certain parts of the award from applying to vessels granted a temporary licence, cannot exclude the provisions of the NES from applying to such vessels, as this is expressly prohibited by s 55(1) of the FW Act.
In order to remove the appearance that in proscribing the application of Part 5 of the Seagoing Award 2020, clause 8.3 also excludes the terms of the NES, we propose to insert the following note to follow clause 8.3:
NOTE: Clause 8.3 does not operate to exclude any terms of the NES from applying to vessels granted a temporary licence.
To ensure consistency with the current NES entitlement to paid FDV leave, it is our provisional view that the current provisions in the Seagoing Award 2020 providing for unpaid FDV leave should be varied to remove the reference to “unpaid” as outlined in [10] above. It is also our provisional view that the consequential variations to the awards identified at [18], [19] and [25] are appropriate to clarify the application of the entitlement.
Next steps
Draft determinations giving effect to the provisional view will be published concurrently with this decision. Parties may file submissions in response to the draft determinations by 4:00 pm (AEDT) on Thursday, 23 February 2023.
In the absence of any comments, final determinations will be issued and will commence operation on 1 March 2023.
ACTING PRESIDENT
[1] [2021] FWCFB 2047
[2] [2018] FWCFB 1691 at [309]
[3] [2019] FWCFB 5144
[4] ACTU correspondence dated 12 April 2021
[5] [2021] FWCFB 2477 at [4]
[6] [2022] FWCFB 2001 at [997]
[7] [2022] FWCFB 152 at [7]
[8] Guidelines: Plain language drafting of modern awards, 20 June 2017 at [3.14]
[9] [2009] AIRCFB 945
[10] Ibid at [159]-[169]
[11] Fair Work Amendment Regulation 2012 (No. 2) (Cth)
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