Family and domestic violence leave review 2021

[2022] FWCFB 104

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, 16 JUNE 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 – amended directions.

In our decision of 16 May 2022, we concluded that the merits strongly favour a paid family and domestic violence (FDV) leave entitlement and reached a provisional view as to the characteristics of a model FDV leave term (see Chapter 8.4). Further, at a ‘global’ level of assessment, we expressed our provisional view that the insertion of the provisional model FDV leave term into modern awards is necessary to achieve the modern awards objective.[1]

In the ‘next steps’ section of our decision, we sought clarification from the Commonwealth Government about whether it intends to vary the National Employment Standards (NES) to provide for paid FDV leave. The Hon Tony Burke MP, Minister for Employment and Workplace Relations has written to the Commission today in response to our decision. The Minister’s correspondence states 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.’

In view of this correspondence, we propose to amend the directions in the Commission’s FDV leave review as follows:

1. The parties are to formulate a draft model FDV leave term based on our provisional views in Chapter 8.4. The formulation of such a draft term will be without prejudice to a parties’ ability to challenge any of our provisional views. The proposed draft model terms are to be filed by 4:00pm ~~Friday 17 June 2022~~ Friday 1 July 2022;

2. The parties are to confer and submit draft directions in respect of the finalisation of these proceedings. Such directions are to:

(i) provide an opportunity for the parties to express a view on the draft model FDV leave terms proposed by other parties and the provisional views we express about the content of that term; and

(ii) provide the Commonwealth Government an opportunity to clarify its intentions regarding any amendment to the NES, should it choose to do so.

The draft directions are to be filed by no later than 4:00pm Friday 1 July 2022.

We intend to seek further clarification from the Commonwealth Government about its proposed timeframe for introducing legislation to include paid FDV leave in the NES.

PRESIDENT

[1] [2022] FWCFB 2001 [997].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a four-yearly review of modern awards, specifically regarding the introduction of paid family and domestic violence leave. The Commission had previously concluded that the merits strongly favoured the introduction of such leave and had expressed provisional views on the characteristics of a model family and domestic violence leave term. The Commonwealth Government had been asked to clarify its intentions regarding the National Employment Standards (NES) in light of this decision. The Hon Tony Burke MP, Minister for Employment and Workplace Relations, responded to the Commission's decision by stating that the Government intends to introduce 10 days paid family and domestic violence leave into the NES as soon as possible.

The legal issues before the Commission were whether the insertion of the provisional model family and domestic violence leave term into modern awards was necessary to achieve the modern awards objective, and whether the Commonwealth Government intended to vary the NES to provide for paid family and domestic violence leave. The Commission sought clarification from the Commonwealth Government regarding its intentions and received a response from the Minister for Employment and Workplace Relations stating that the Government intends to introduce 10 days paid family and domestic violence leave into the NES as soon as possible.

The Commission considered the Minister's correspondence and proposed to amend the directions in the Commission's family and domestic violence leave review. The parties were to formulate a draft model family and domestic violence leave term based on the Commission's provisional views and file it by 1 July 2022. The parties were also to confer and submit draft directions in respect of the finalisation of these proceedings, providing an opportunity for the parties to express a view on the draft model family and domestic violence leave terms proposed by other parties and the provisional views expressed by the Commission about the content of that term. The draft directions were to be filed by 1 July 2022. The Commission intended to seek further clarification from the Commonwealth Government about its proposed timeframe for introducing legislation to include paid family and domestic violence leave in the NES.

In conclusion, the Commission proposed to amend the directions in the family and domestic violence leave review, requiring the parties to formulate a draft model family and domestic violence leave term and confer to submit draft directions in respect of the finalisation of these proceedings. The Commission intended to seek further clarification from the Commonwealth Government about its proposed timeframe for introducing legislation to include paid family and domestic violence leave in the NES.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established