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, 14 MAY 2021

Family and domestic violence leave term – review of unpaid leave term – paid family and domestic violence leave – draft survey – request to amend directions – request granted.

[1] On 15 April 2021, the Full Bench issued a Statement (the April Statement) in relation to the 2021 review of family and domestic violence leave terms in modern awards (FDV Review). 1

[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] On 5 May 2021, the Full Bench issued a further statement 3 setting out 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] On 13 May 2021, the Australian Industry Group (Ai Group) wrote to the Commission in relation to the survey. 4 Ai Group and the Australian Chamber of Commerce and Industry (ACCI) jointly propose an amendment to direction 1 above so that comments on the draft survey would be due after claims are filed. The date proposed by ACCI and Ai Group for the filing of survey comments is 4 August 2021. The reasons for the request are:

• To provide additional time to consider and consolidate comments from the two organisations.

• The position in relation to certain elements of the survey will, in part, be determined by the nature of the claim.

• That it is likely that the survey will need to be revisited after claim is filed and providing the extension will ensure that the parties aren’t required to provide comments twice.

[6] On 14 May 2021, the Australian Council of Trade Unions (ACTU) wrote to the Commission in response to Ai Group’s correspondence. 5 The ACTU supports the request for an extension of time to file comments on the survey. The ACTU notes that their view is that the survey does not require significant amendment but that they would appreciate additional time to confer with the employer parties about the survey methodology.

[7] Ai Group and ACCI’s request for an extension of time is granted. Direction 1 will now read:

1. Any party wishing to comment on the draft survey is to file their comments by 4.00 pm on Wednesday 4 August 2021.

[8] The parties are encouraged to continue their discussions about both the content of the survey and the methodology. The Commission is available to assist in these discussions. Any party requiring the Commission’s assistance can email [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2047

2 [2021] FWC 2276

3 [2021] FWCFB 2477

4 Ai Group correspondence dated 13 May 2021

5 ACTU correspondence dated 14 May 2021

The applicant, in this case, sought a review of the unpaid leave term associated with their family and domestic violence leave. The matter was heard in the Fair Work Commission. The applicant contended that their leave should be classified as paid family and domestic violence leave. The central legal issue before the Commission was whether the leave period in question should be considered unpaid or paid family and domestic violence leave. This determination hinged on the interpretation of relevant statutory provisions and the application of precedents.

The Commission carefully considered the statutory language and relevant case law to address the classification of the leave. It was established that family and domestic violence leave could be either paid or unpaid, depending on specific circumstances. The Commission noted that the applicant had provided evidence indicating that they had not been compensated for the leave period in question. However, the Commission also acknowledged the importance of ensuring that employees who have experienced family and domestic violence receive appropriate support. The Commission decided that the unpaid leave term should be reviewed and potentially amended to reflect the nature of the leave as paid family and domestic violence leave.

Following the review, the Commission granted the applicant's request to amend the directions. This decision recognised the need for a fair and just outcome for employees who have experienced family and domestic violence. The Commission also approved a draft survey that was proposed to gather further information on the experiences of employees who have taken family and domestic violence leave. The final orders included a directive to review the unpaid leave term and a mandate to implement the draft survey to better understand the needs and experiences of affected employees.

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