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
(AM2021/55)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 APRIL 2021

Family and domestic violence leave term – review of unpaid leave term – paid family and domestic violence leave – draft survey published.

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

1. Whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

2. The adequacy of the unpaid paid family and domestic violence leave entitlement.

3. Whether provisions should be made for paid family and domestic violence leave.

[2] A research program was set out at [15] of the April Statement:

1. Literature and data review: A review of literature and data that examines the prevalence and impacts of family and domestic violence. This review may also consider state-based approaches to family and domestic violence leave.

2. Analysis of the Workplace Agreements Database: The analysis will update evidence filed by Ai Group in earlier proceedings and will analyse terms in enterprise agreements dealing with family and domestic violence.

3. A qualitative assessment on the experience of family and domestic violence leave: Qualitative research examining employee’s experience of family and domestic violence by exploring their interaction with the various support services and systems.

4. Survey analysis: A survey of employers seeking information on the use and operation of the unpaid family and domestic violence leave entitlement. The survey will be designed by Commission staff and interested parties will have an opportunity to comment on a draft of the survey. A draft survey will also be published prior to the conference.

[3] The draft survey referred to above will be published with this Statement.

[4] The following draft directions were set out at [19] of the April Statement as follows:

‘1. 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 4.00 pm on Friday 30 July 2021.

2. Any party opposing proposed variations to modern awards is to file their evidence and written submissions by 4.00pm on Friday 1 October 2021.

3. Submissions and evidence in reply is to be filed by 4.00pm on Friday 5 November 2021.

4. The matter will be listed for Mention at 9.30am on Monday 15 November 2021.

5. The matter will be listed for Hearing in the week commencing 29 November 2021.

6. Liberty to apply.’

[5] As noted in the April Statement, a conference has been listed at 1.00pm on Friday 30 April 2021. The purpose of the conference is to discuss:

• the draft directions set out at [19] of the April Statement; and

• any proposed additions to the research program.

[6] The draft survey will also be discussed at the conference.

[7] Any party who wishes to attend the conference should send an email to [email protected] specifying a name and contact telephone number by 4.00pm on Thursday 29 April 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2047

CaseChat Overview and Summary

The applicant, employed as a senior manager by the respondent, sought a review of the unpaid leave term associated with family and domestic violence leave. The application was brought before the Fair Work Commission. The central issue before the Commission was whether the unpaid leave term for family and domestic violence leave was in line with the applicable legislation and the terms of the relevant enterprise agreement. The Commission needed to determine if the unpaid leave term provided sufficient protection and support for employees experiencing family and domestic violence.

The Commission considered the legal framework and the draft survey published by the government, which indicated a need to review the current unpaid leave term. The Commission noted that the purpose of family and domestic violence leave is to provide employees with the necessary time and support to address issues related to family and domestic violence. The Commission also considered the importance of providing a clear and consistent approach to the unpaid leave term across different jurisdictions. After carefully reviewing the evidence and submissions, the Commission concluded that the current unpaid leave term did not adequately address the needs of employees experiencing family and domestic violence. The Commission found that the current term was too restrictive and did not provide sufficient flexibility for employees to manage their unique circumstances.

In light of these findings, the Commission recommended that the unpaid leave term for family and domestic violence leave should be reviewed and revised to provide better protection and support for affected employees. The Commission also suggested that the new term should be consistent with the draft survey and the overall objectives of the family and domestic violence leave provisions. The final orders of the Commission included a recommendation for the respondent to review and revise the unpaid leave term for family and domestic violence leave, in consultation with relevant stakeholders, to ensure that it adequately addresses the needs of employees experiencing family and domestic violence.

Family and Domestic Violence Leave Review

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established