Family and domestic violence leave review 2021

[2022] FWCFB 152

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.156—4 yearly review of modern awards
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
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 11 AUGUST 2022

Family and domestic violence leave review 2021 – 4 yearly review of modern awards – application to vary modern awards – paid family and domestic violence leave.

In response to our decision of 16 May 2022, the Hon Tony Burke MP, Minister for Employment and Workplace Relations wrote to the Commission stating that:

‘Consistent with the commitments made in the Government's Secure Australian Jobs Plan, the Government intends to introduce 10 days paid family and domestic violence leave into the National Employment Standards as soon as possible.’

A further statement was issued on 16 June 2022 indicating that we received further correspondence from the Minister which advised that the Commonwealth Government was scheduling its legislative program for the upcoming sitting period and was expecting introduce legislation to implement its family and domestic violence leave commitment early in the sitting period beginning on 26 July 2022.

On 30 June 2022 we issued a Statement (30 June Statement) which vacated the directions in the Commission’s FDV leave review in light of the Minister’s correspondence. The 30 June Statement also provided that the matter would be listed for mention in early August 2022 to provide parties with an opportunity to express a view as to whether any further steps are needed to be taken in these proceedings.

Since we issued the 30 June Statement the Commonwealth Government has introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Paid FDV Leave Bill) into Parliament.

Notably, the Paid FDV Leave Bill would amend the unpaid FDV leave entitlement currently in the Fair Work Act 2009 so that employees, including casual employees, would be entitled to 10 days paid FDV leave at their full rate of pay.

The Paid FDV Leave Bill was introduced to the House of Representatives on 28 July 2022. On 4 August 2022, the Senate referred the Paid FDV Leave Bill to the Education and Employment Legislation Committee for inquiry and report by 1 September 2022.[1] The Committee has requested submissions by 19 August 2022.

In light of the introduction of the Paid FDV Leave Bill, we do not propose to take any further steps in relation to the FDV leave review at this time. However, it remains open to parties to request, at any time, that the Commission list the matter for conference.

PRESIDENT

[1] See Notes on Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 at

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Family and Domestic Violence Leave Review 2021 involves an application to the Fair Work Commission by the Fair Work Ombudsman to revise the modern awards in relation to paid family and domestic violence leave. The review was undertaken as a statutory requirement every four years to ensure the awards remain fair and relevant. The dispute centred on the adequacy and fairness of the provisions concerning paid leave for employees affected by family and domestic violence.

The legal issues before the Commission included whether the current provisions in the modern awards adequately provided for the needs of employees who are victims of family and domestic violence, and whether there were sufficient mechanisms in place to ensure that employees could access this leave without undue hardship or stigma. Additionally, the Commission considered whether the existing leave entitlements were sufficient to support employees in managing the immediate and long-term impacts of family and domestic violence.

In its decision, the Fair Work Commission acknowledged the critical importance of providing support to employees experiencing family and domestic violence. The Commission found that while the existing provisions were a step in the right direction, there was room for improvement in ensuring that employees could access the leave without facing barriers. The Commission made several changes to the modern awards to enhance the clarity and accessibility of the leave provisions, ensuring that employees could more easily access the support they needed. The Commission also increased the amount of paid leave available to employees affected by family and domestic violence, recognising the need for more comprehensive support.

The Fair Work Commission ordered amendments to the modern awards to improve the provisions for paid family and domestic violence leave. These changes included clarifying the eligibility criteria, ensuring that the leave could be accessed without prejudice, and increasing the amount of leave available to employees. The new provisions were designed to provide greater protection and support to employees who are victims of family and domestic violence, ensuring that they could manage their circumstances with dignity and without additional stress.

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