[2018] FWCFB 1691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

4 yearly review of modern awards – Family and Domestic Violence Leave
(AM2015/1)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER SPENCER

MELBOURNE, 26 MARCH 2018

4 yearly review - Family and Domestic Violence Leave – Determination of Model Term for Unpaid Leave.

Chapters		Page	Paragraph
1.	Introduction 1.1 Background 1.2 The Process	4	[1] [16]
2.	Legislative Framework for the Review	9	[29]
3.	Family and Domestic Violence: The Evidence	18	[64]
4.	Accessing personal/carer’s leave - jurisdiction	27	[108]
5.	Unpaid Leave 5.1 The preliminary view 5.2 The model term 5.3 Jurisdiction and the modern awards objective	37	[159] [191] [270]
6.	Next Steps	59	[304]
ATTACHMENTS Attachment A – List of Statements issued Attachment B – List of Submissions filed Attachment C – List of modern awards to be varied Attachment D – List of cases	69 70 73 76

ABBREVIATIONS

Act	Fair Work Act 2009 (Cth)
ABI	Australian Business Industrial and the New South Wales Business Chamber
ABS	Australian Bureau of Statistics
ACCI	Australian Chamber of Commerce and Industry
ACTU	Australian Council of Trade Unions
ADFVC	Australian Domestic and Family Violence Clearinghouse
AFPCS	Australian Fair Pay and Conditions Standard
AI Act	Acts Interpretation Act 1901 (Cth)
Ai Group	Australian Industry Group
Amended Claim	ACTU claim for family and domestic violence leave of 15 June 2015 reproduced at [4] of this decision
AMIC	Australian Meat Industry Council
APSC	Australian Public Service Commission
Commission	Fair Work Commission
GVRN	Gendered Violence Research Network (University of New South Wales)
ILO	International Labour Organization
Majority Decision	[2017] FWCFB 3494
Minority Decision	[2017] FWCFB 1133
MEA	Master Electricians Australia
National Plan	Department of Social Services (2011), National plan to reduce violence against women and their children 2010–2022, Australian Government
NatRoad	National Road Transport Association
NES	National Employment Standards
PwC	Price Waterhouse Coopers
Review	4 yearly review of modern awards
SDA	Shop, Distributive and Allied Employees Association
VicHealth Report	VicHealth and Department of Human Services (2004), The health costs of violence: measuring the burden of disease caused by intimate partner violence, Victorian Government
WR Act	Workplace Relations Act 1996 (Cth)

List of charts

Chart 1	Experience of violence by current/previous partner since the age of 15 years, by labour force status, all persons
Chart 2	Experience of violence by current partner since the age of 15 years, females, by frequency of violence

List of tables

Table 1	Experience of assault since the age of 15 years, whether took time off work in the 12 months after the most recent incident of violence, by type of assault and gender of perpetrator
Table 2	Domestic Violence Clauses and Leave

1. Introduction

1.1 Background

[1] Section 156 of the Fair Work Act 2009 (Cth) (the Act) provides that the Fair Work Commission (the Commission) must conduct a review of all modern awards every four years (the Review).

[2] As part of the Review, the Australian Council of Trade Unions (ACTU) made a claim to include an entitlement to 10 days’ paid domestic violence leave in all modern awards 1. The ACTU claim was opposed by a number of Employer parties on both jurisdiction and merits grounds. The Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI) submitted that the jurisdictional objections to the claim should be determined as a threshold issue.

[3] On 1 December 2014, the Commission published a Statement confirming that jurisdictional objections advanced by the Employer parties would be dealt with as a threshold issue. The following four jurisdictional issues were identified by the Employer parties and set out in Directions published on 10 June 2015:

‘(i) Are any elements of the claims of the ACTU or individual unions inconsistent with Part 2-1 or Part 2-2 of the Fair Work Act 2009?

(ii) Do any elements of the claims of the ACTU or individual unions require terms that are not permitted to be included in a modern award under Part 2-3 of the Fair Work Act 2009?

(iii) Are any elements of the claims of the ACTU or individual unions inconsistent with Part 6-2 of the Fair Work Act 2009?

(iv) Do any elements of the claims of the ACTU or individual unions purport to give the Commission powers which it does not have under the Fair Work Act 2009?’ 2

[4] After the filing of submissions in relation to the jurisdictional issues, the ACTU filed an amended claim for family and domestic violence leave (the Amended Claim), as follows:

‘FAMILY AND DOMESTIC VIOLENCE LEAVE

X.1 Definition

For the purpose of this clause, family and domestic violence is defined as any violent, threatening or other abusive behaviour by a person against a member of the person's family or household (current or former).

X.2 Family and Domestic Violence Leave

X.2.1 An employee, including a casual employee, experiencing family and domestic violence is entitled to 10 days per year of paid family and domestic violence leave for the purpose of:

(a) attending legal proceedings, counselling, appointments with a medical or legal practitioner;

(b) relocation or making other safety arrangements; or

X.2.2 Upon exhaustion of the leave entitlements in clauses X.2.1, employees will be entitled to up to 2 days unpaid family and domestic violence leave on each occasion.

X.3 Notice and Evidentiary Requirements

X.3.1 The employee shall give his or her employer notice as soon as reasonably practicable of their request to take leave under this clause.

X.3.2 If required by the employer, the employee must provide evidence that would satisfy a reasonable person that the leave is for the purpose as set out in clause X.2.1. Such evidence may include a document issued by the police service, a court, a doctor (including a medical certificate), district nurse, maternal and child health care nurse, a family violence support service, a lawyer or a statutory declaration.

X.3.3 The employer must take all reasonable measures to ensure that any personal information provided by the employee to the employer concerning an employee’s experience of family and domestic violence is kept confidential.’ 3

[5] The Amended Claim had the effect of removing a substantial part of the Employer parties’ jurisdictional objections, with the only outstanding objection being to clause X.3.3. The Employer parties submitted that clause X.3.3, which dealt with confidentiality, could not be included in a modern award because it was not ‘about’ a matter in s.139(1) of the Act and was not an incidental or machinery term as permitted by s.142. The ACTU submitted that the clause was incidental to the entitlement in clause X.2 and was essential to making the leave entitlement operate in a practical way (within the meaning of s.142(1)).

[6] On 22 October 2015, a Full Bench issued a decision in relation to the jurisdictional objections. 4 The Full Bench held that, without hearing the evidence, they were unable to conclude that clause X.3.3 of the proposed family and domestic violence leave clause was beyond jurisdiction. The Full Bench noted:

‘It was accepted by the employer parties that the substantive provisions of the Family and Domestic Violence Leave clause, which would establish an entitlement to 10 days per year domestic and violence leave to be taken for specific identified purposes, were authorised by s.139(1)(h) as terms which could be included in a modern award because they were about “leave”. We consider that if there was evidence demonstrating that the confidentiality requirement in clause X.3.3 was necessary in order for the proposed leave entitlement to operate effectively (for example because without confidentiality employees might not be prepared to disclose anything about domestic violence incidents and thus would not be able to access the entitlement), it would be reasonably arguable that clause X.3.3 was authorised by s.139(1)(h) as a term which was about “leave” or “arrangements for taking leave” and/or by s.142(1) as “incidental to a term that is permitted … to be in the modern award” and “essential for the purpose of making a particular term operate in a practical way”.’ 5

[7] The decision went on to confirm that the matter would proceed to a final hearing before a Full Bench.

[8] A Full Bench consisting of former Vice President Watson, Deputy President Gooley and Commissioner Spencer was then constituted to determine the Amended Claim. The matter was heard from 14 to 18 November 2016 and 1 to 2 December 2016.

[9] On 27 February 2017 former Vice President Watson issued a decision rejecting the Amended Claim (the Minority Decision). 6 The Vice President found:

‘There can be no doubt that family and domestic violence is widespread in Australian society. It has implications for community safety, policing, law enforcement, family and other relationships, education and workplaces. There can also be no doubt that employers should be aware of the problem and adopt approaches that assist affected employees and limit the impact of the problem on their business.’ 7

[10] However, the Vice President concluded:

‘In all of the circumstances I am not satisfied that the family and domestic violence leave claim by the ACTU is necessary to provide a fair and relevant minimum safety net of terms and conditions. It follows that the ACTU claim should be rejected.’ 8

[11] On 3 July 2017, Deputy President Gooley and Commissioner Spencer issued a joint decision (the Majority Decision) which also rejected the Amended Claim. 9 The Majority Decision stated:

‘We have formed the preliminary view that it is necessary to make provision for family and domestic violence leave but for reasons explained in this decision, have decided to dismiss the ACTU’s application because we are not satisfied, at this time, that it is necessary to provide ten days paid family and domestic violence leave to all employees covered by modern awards. We have however, formed the preliminary view that all employees should have access to unpaid family and domestic violence leave and in addition we have formed the preliminary view that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave. We note that the parties have not had an opportunity to make submissions or call evidence on these matters and we intend to provide the parties with such an opportunity prior to finalising our decision.’ 10

[12] This decision addresses the ‘preliminary views’ expressed in the Majority Decision.

[13] After the Majority Decision was handed down, the President reconstituted the Full Bench in this matter pursuant to s.622 of the Act, with the President replacing Vice President Watson (who had resigned) as the third member of the Full Bench.

[14] Pursuant to s.623 of the Act, the President has taken into account everything that occurred before the Commission, and everything that the Commission did, in relation to the matter before the President began to deal with the matter.

[15] The next section sets out the steps taken following the reconstitution of the Full Bench.

1.2 The Process

[16] A Mention was held on 21 July 2017, at which there was general support for the Commission providing some guidance about the issues to be addressed in submissions on the preliminary views in the Majority Decision.

[17] In a Statement issued on 24 July 2017, 11 the reconstituted Full Bench made clear that in determining the remaining issues, the Full Bench would have regard to all of the submissions and evidence filed in the proceedings. A list of that material was attached to the Statement.

[18] A further Statement was issued on 3 August 2017 12 (the August 2017 Statement) which, in summary:

• attached a revised list of submissions and evidence filed in the proceedings;

• confirmed that the Australian Government Industry Award 2016 would be considered as part of the Amended Claim and that any outcome may apply to that award;

• finalised the list of issues to be addressed in these proceedings; and

• made some observations regarding the implementation of any outcome from these proceedings.

[19] In relation to the last mentioned point, the Full Bench said:

‘In the event that the Full Bench confirms the preliminary views in respect of unpaid leave and access to personal/carer’s leave for the purpose of taking family and domestic violence leave, the likely outcome will be a model term.

If any party wishes to contend that such a model term should not be inserted into a particular award or that a tailored industry specific approach should be adopted, then they should set out their position … Any awards so identified will be the subject of further proceedings after the resolution of a model term.

To be clear, if a model term(s) is determined as part of these proceedings and we are satisfied that such a term is necessary to achieve the modern awards objective then it will be inserted into each modern award except those modern awards [for] which a party has indicated a preference for a different approach’. 13

[20] Submissions were received in response from the following parties:

(i) Ai Group;

(ii) Australian Public Service Commission (APSC);

(iii) National Road Transport Association (NatRoad);

(iv) Australian Meat Industry Council (AMIC);

(v) ACCI; and

(vi) ACTU.

[21] A summary of these submissions was published on 15 September 2017.

[22] A Research Reference List was also published on 15 September 2017. The Research Reference List included a non-exhaustive list of the research materials and data sources that parties had referred to in their submissions, together with further publications identified by Commission staff as relevant to the proceedings.

[23] In order to assist parties to prepare their submissions, Commission staff also published a Background Paper exploring a number of issues relating to the form and content of a model term that would give effect to the preliminary views in the Majority Decision. The Background Paper identified the five key elements to be considered in drafting a model term:

(i) the definition of ‘family and domestic violence’ for the purposes of the term;

(ii) the purpose of the leave (i.e. in what circumstances an employee can access the leave and which employees may take the leave);

(iii) unpaid leave;

(iv) the evidence requirements; and

(v) privacy considerations.

[24] The Background Paper examined each of these elements and provided various options as to how they might be dealt with in a model term. The Background Paper also posed a number of questions to the parties in relation to these issues.

[25] A Statement issued on 6 October 2017 14 noted that submissions in reply had been received from the following parties:

(i) ACCI

(ii) AMIC

(iii) Ai Group

(iv) Transport Workers’ Union of Australia

(v) ACTU

(vi) Master Electricians Australia (MEA).

[26] The Statement also noted that a conference would be held on 13 October 2017 before the President and identified the issues for discussion at that conference.

[27] Conferences were held before the President on 13, 18, 19 and 20 October 2017 and were attended by representatives of the ACTU, Ai Group, ACCI, AMIC, NatRoad, MEA, the Pharmacy Guild of Australia and the Community and Public Sector Union. At the conferences, there was a measure of agreement reached in relation to some aspects of a draft model unpaid family and domestic violence leave term. We return to this matter in Chapter 5.

[28] A list of the Statements issued in this matter is at Attachment A. A list of submissions filed by the parties is at Attachment B.

2. Legislative Framework for the Review

[29] Section 156 of the Act requires the Commission to conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014.

[30] Subsection 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 15

[31] Section 156 clearly delineates what must be done in a Review, what must not be done and what may be done. Further, where the legislative intent of the section is to qualify a discretion this is done expressly, as in s.156(3) - the Commission may vary modern award minimum wages ‘only if’ it is satisfied that the variation is justified by work value reasons. This may be contrasted with the discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, which is expressed in general, unqualified, terms.

[32] If a power to decide is conferred by a statute and the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the scope and purposes of the legislation will ordinarily be implied. 16 However, a number of provisions of the Act which are relevant to the Review operate to constrain the breadth of the discretion in s.156(2)(b)(i). In particular, the Review function is in Part 2-3 of the Act and hence involves the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)). It follows that the ‘modern awards objective’ in s.134 applies to the Review. Section 138 (achieving the modern awards objective) also applies.

[33] A range of other provisions of the Act are relevant to the Review: s.3 (object of the Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions etc by the Commission); s.578 (matters the Commission must take into account in performing functions etc), and Division 3 of Part 5-1 (conduct of matters before the Commission).

[34] Any variation of a modern award arising from the Review must comply with the requirements of the Act relating to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or must be included in modern awards, and terms that must not be included in modern awards. Division 3 includes s.138. This Division also prohibits award terms that contravene s.55 (which deals with the interaction between the NES and modern awards). These provisions, in an appropriate case, may operate to constrain the discretion in s.156(2)(b)(i). 17

[35] Division 6 of Part 2-3 also contains specific provisions relevant to the exercise of modern award powers which apply to the Review. If the Commission were to make a modern award, or change the coverage of an existing modern award in the Review, then the requirements in s.163 would need to be satisfied. Sections 165 and 166 deal with when variation determinations come into operation. Variation determinations arising from the Review will generally operate prospectively, unless the variation is made under s.160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors: see ss.165(2)(a) and 166(3)(a)) and the Commission is satisfied that there are exceptional circumstances that justify retrospectivity (ss.165(2)(b) and 166(3)(b)).

[36] The general provisions relating to the performance of the Commission’s functions in Division 2 of Part 5-1 of the Act also apply to the Review. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:

‘577 Performance of functions etc by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that FWC performs its functions and exercises its powers efficiently etc (see section 581).’

[37] Section 578 states:

‘578 Matters the FWC must take into account in performing functions etc

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

[38] As stated in s.578(a), in performing functions and exercising powers under a part of the Act (including the Review function under Part 2-3) the Commission must take into account the objects of the Act and any particular objects of the relevant part. The object of Part 2-3 is expressed in s.134 (the modern awards objective). The object of the Act is set out in s.3, as follows:

‘3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.’

[39] In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission is not bound by the rules of evidence and procedure (s.591) and may inform itself in relation to any matter before it in such manner as it considers appropriate (s.590(1)).

[40] Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The requirement in s.156(5) to review each modern award ‘in its own right’, is intended to ensure that the Review is conducted ‘by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations’. 18 However, while the review of each modern award must focus on the particular terms and operation of the particular award, this does not mean that the review of a modern award is to be confined to a single holistic assessment of all of its terms.19 Further, s.156(5) provides that the requirement that each modern award be reviewed in its own right does not prevent the Commission from reviewing two or more modern awards at the same time.

[41] While s.156(5) does not confine the review of a modern award to a single holistic assessment of all of its terms, a single holistic assessment of each modern award will be required prior to the conclusion of the Review. Such an assessment will be necessary so that each modern award is reviewed, in its own right, to ensure that it achieves the modern awards objective and only includes terms to the extent necessary to achieve that objective.

[42] In CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo American) 20 the Full Court of the Federal Court discussed the nature of the Commission’s task in conducting the Review:

‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award [sic] objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’ 21

[43] The Review is to be distinguished from inter partes proceedings. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 22 The Commission is not required to make a decision in the terms applied for (s.599) and, in the Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions as outlined above.

[44] In 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors) 23 the Full Bench summarised the general propositions applying to the Commission’s task in the Review, as follows:

‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation.Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

• the legislative context which pertained at that time may be materially different from the FW Act;

• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’ 24

[Endnotes omitted]

[45] We now turn to the relevance of the ‘modern awards objective’ to the Review.

[46] The modern awards objective is set out in s.134 of the Act:

‘134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[47] The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a) to (h) (the s.134 considerations). The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 25 No particular primacy is attached to any of the s.134 considerations26 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[48] Section 138 of the Act emphasises the importance of the modern awards objective:

‘138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[49] To comply with s.138, the terms included in modern awards must be ‘necessary to achieve the modern awards objective’.

[50] In Shop, Distributive and Allied Employees Association v National Retail Association (No.2) 27 Tracey J considered what it meant for the Commission to be satisfied that making a determination varying a modern award (outside a 4 yearly review) was ‘necessary to achieve the modern awards objective’ for the purposes of s.157(1). His Honour held:

‘The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective”. That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.

…

The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective.

…

In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.’ 28

[51] The above observation – in particular the distinction between that which is ‘necessary’ and that which is merely ‘desirable’ – is apposite to s.138, including the observation that reasonable minds may differ as to whether a particular award term or proposed variation is necessary, as opposed to merely desirable. What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 29

[52] If a modern award is not achieving the modern awards objective then it is to be varied so that it only includes terms that are ‘necessary to achieve the modern awards objective’. In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award as proposed to be varied.

[53] The terms of s.138 do not require that the Commission be satisfied that a particular variation proposed by a party is necessary to achieve the modern awards objective.Such an approach would inappropriately focus attention on the particular variation proposed, rather than on the terms of the modern award as proposed to be varied. 30 In 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues31 the Full Bench considered what had to be demonstrated by the proponent of an award variation and concluded that:

‘… To comply with s.138 the formulation of terms which must be included in modern award[s] or terms which are permitted to be included in modern awards must be in terms ‘necessary to achieve the modern awards objective’… In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.’ 32

[54] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations. 33 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives. As the Full Court of the Federal Court said in National Retail Association v Fair Work Commission:34

‘It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim.

The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA’s contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected.’ 35

[55] In Anglo American the Court also considered the expression ‘only to the extent necessary to achieve the modern awards objective’ in s.138:

‘… The words “only to the extent necessary” in s 138 emphasise the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed. Other terms and conditions beyond a minimum are to be the product of enterprise bargaining, and enterprise agreements under Pt 2-4’. 36

[56] The modern awards objective is very broadly expressed 37 and the matters which may be taken into account are not confined to the s.134 considerations. As the Full Court of the Federal Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group38(Penalty Rates Review):

‘… What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40).’ 39

[57] In the context of the Review, variation of a modern award may be warranted if it is established that there has been a material change in circumstances since the making of the award, but the Commission’s power to vary the award is not conditional on it being satisfied that there has been such a change in circumstances. 40 For example, a modern award might be found not to comply with the modern awards objective ‘where considerations, which were extant but unappreciated or not fully appreciated on a prior review, are properly brought to account.’41

[58] The modern awards objective is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)-(h). 42 As the Full Court observed in the Penalty Rates Review:

‘… It is apparent that “a fair and relevant minimum safety net of terms and conditions” is itself a composite phrase within which “fair and relevant” are adjectives describing the qualities of the minimum safety net of terms and conditions to which the FWC’s duty relates. Those qualities are broadly conceived and will often involve competing value judgments about broad questions of social and economic policy. As such, the FWC is to perform the required evaluative function taking into account the s 134(1)(a)-(h) matters and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance. It is entitled to conceptualise those criteria by reference to the potential universe of relevant facts, relevance being determined by implication from the subject matter, scope and purpose of the Fair Work Act.

…

… As discussed “fair and relevant”, which are best approached as a composite phrase, are broad concepts to be evaluated by the FWC taking into account the s 134(1)(a)-(h) matters and such other facts, matters and circumstances as are within the subject matter, scope and purpose of the Fair Work Act. Contemporary circumstances are called up for consideration in both respects, but do not exhaust the universe of potentially relevant facts, matters and circumstances’. 43

[59] Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. As the Full Court observed in the Penalty Rates Review:

‘it cannot be doubted that the perspectives of employers and employees and the contemporary circumstances in which an award operates are circumstances within a permissible conception of a “fair and relevant” safety net taking into account the s.134(1)(a)-(h) matters.’ 44

[60] Finally, the expression ‘minimum safety net of terms and conditions’ in s.134(1) was considered in 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors), in which the Full Bench rejected the proposition that the reference to a ‘minimum safety net’ in s.134(1) means the ‘least … possible’ to create a ‘minimum floor’:

‘the argument advanced pays scant regard to the fact the modern awards objective is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’. The joint employer reply submission gives insufficient weight to the statutory directive that the minimum safety net be ‘fair and relevant’. Further, in giving effect to the modern awards objective the Commission is required to take into account the s.134 considerations, one of which is ‘relative living standards and the needs of the low paid’ (s.134(1)(a)). The matters identified tell against the proposition advanced in the joint employer reply submission.’ 45

[61] We conclude our general observations about the modern awards objective by noting that the nature of modern awards under the Act is quite different from the awards made under previous legislative regimes. 46 In times past awards were made in settlement of industrial disputes. The content of these instruments was determined by the constitutional and legislative limits of the tribunal’s jurisdiction, the matters put in issue by the parties (i.e. the ‘ambit’ of the dispute) and the policies of the tribunal as determined from time to time in wage fixing principles or test cases. An award generally only bound the employers, employer organisations and unions which had been parties to the industrial dispute that gave rise to the making of the award and were named as respondents. Modern awards are very different to awards of the past.

[62] Modern awards are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the NES and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss.3(b) and 43(1)). They are, in effect, regulatory instruments that set minimum terms and conditions of employment for the employees to whom the modern award applies (see s.47).

[63] Nor are there named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for a determination making, varying or revoking a modern award. Under previous legislative regimes, the named respondents to a particular award would automatically have the requisite standing to make such applications; that is no longer the case. 47

3. Family and Domestic Violence: The Evidence

[64] A list of evidence and submissions filed in the proceedings was attached to the August 2017 Statement. A list of expert reports and witness statements is set out below:

• Exhibit ACTU B-1: Dr Peta Cox, Expert report by Dr Peta Cox, (Cox Report). 48

• Exhibit ACTU B-2: Dr Peta Cox, Supplementary report of Dr Peta Cox, (Cox Supplementary Report).

• Exhibit ACTU B-3: Dr Martin O’Brien, Expert report of Dr Martin O’Brien, (O’Brien Report). 49

• Exhibit ACTU B-4: Dr Michael Flood, Expert report of Dr Michael Flood, (Flood Report). 50

• Exhibit ACTU B-5: Dr Natasha Cortis, Women’s economic security and domestic violence: the role of employment, employment support and employment protection, (Cortis Report). 51

• Exhibit ACTU B-6: Professor Cathy Humphreys, Expert report of Professor Cathy Humphreys, (Humphreys Report). 52

• Exhibit ACTU B-7: Witness Statement of Ms Marilyn Beaumont. 53

• Exhibit ACTU B-8: Witness Statement of Ms Michelle Jackson. 54

• Exhibit ACTU B-9: Witness Statement of Mr Mick Doleman. 55

• Exhibit ACTU B-10: Witness Statement of Mr Brad Gandy. 56

• Exhibit ACTU B-11: Witness Statement of Ms Emma Smallwood. 57

• Exhibit ACTU B-12: Witness Statement of Ms Julie Kun. 58

• Exhibit ACTU B-13: Witness Statement of Ms Bernadette Pasco. 59

• Exhibit ACTU B-14: Witness Statement of Ms Michele O’Neill. 60

• Exhibit ACTU B-15: Witness Statement of Mr Sunil Kemppi. 61

• Exhibit ACTU B-16: Ms Ludo McFerran, Expert report of Ludo McFerran: Family and domestic violence and the workplace (McFerran Report). 62

• Exhibit ACTU B-17: Witness Statement of Ms Jocelyn Bignold.

• Exhibit ACTU B-18: Witness Statement of Ms Sandra Dann.

• Exhibit ACTU B-19: Witness Statement of Ms Fiona McCormack.

• Exhibit ACTU B-20: Witness Statement of Ms Samantha Parker.

• Exhibit ACTU B-21: Witness Statement of Ms Jessica Stott.

• Exhibit ACTU B-22: Witness Statement of Ms Karen Willis.

• Exhibit ACTU B-23: Confidential.

• Exhibit ACTU B-24: Confidential.

• Exhibit ACTU B-25: Confidential.

• Exhibit Pricewaterhouse Coopers (PwC) S-1: Witness Statement of Ms Debra Eckersley. 63

• Exhibit Ai Group F-4: Witness Statement of Ms Jenni Mandel. 64

[65] Based on a consideration of the evidence, the Majority Decision made the following findings:

1. Family and domestic violence has a significant adverse impact on those who experience such violence. 65

2. While men can, and do, experience family and domestic violence, such violence is a gendered phenomenon that disproportionately affects women. 66

3. The effects of family and domestic violence are far reaching and extend beyond the individual directly affected to their families and the general community. 67

4. Family and domestic violence has a real and tangible impact on employees and employers in the workplace. 68

5. Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or becoming a sole parent; and may suffer economic harm as a result of disruption to workplace participation. 69

[66] We agree with the above findings. The Majority were satisfied that ‘the circumstances faced by employees who experience family and domestic violence require a special response’. 70 We accept and adopt that conclusion.

[67] This is a community issue and requires a community response. As the Council of Australian Governments states in the ‘National Plan to Reduce Violence Against Women and their Children’ 71 (the National Plan):

‘Whilst there are many forms of violent behaviour perpetrated against women, domestic violence and sexual assault are the most pervasive forms of violence experienced by women in Australia, and require an immediate and focussed response’.

[68] While we adopt the findings set out above we do wish to say something further about the extent of family and domestic violence and the pervasive nature of its impact.

[69] We first turn to the definition of ‘family and domestic violence’. There is no single generally accepted definition, but at the core of family and domestic violence is the perpetrator’s need to maintain control and dominance over the victim. 72

[70] Dr Flood describes intimate partner violence or domestic violence as involving:

‘a systematic pattern of power and control exerted by one person against another, involving a variety of physical and non-physical tactics of abuse and coercion, in the context of a current or former intimate relationship.’ 73

[71] The definition of family and domestic violence was the subject of discussion during the series of conferences of interested parties in October 2017. We deal with the outcome of those conferences in more detail in Chapter 5. Here we simply note that the parties agreed upon the following definition:

‘family and domestic violencemeansviolent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.’

[72] As mentioned in the Majority Decision, family and domestic violence is a gendered phenomenon which disproportionately affects women. Based on an analysis of the available material, Dr Flood found that among those subjected to intimate partner violence, women are more likely than men to:

• be subjected to frequent, prolonged and extreme violence;

• be sexually assaulted;

• sustain injuries;

• fear for their lives; and

• experience other negative consequences, such as psychological harm. 74

[73] Domestic and intimate partner homicides represent the highest proportion of any category of homicides in Australia. At least one woman a week is killed by a partner or former partner. 75 Family and domestic violence is the leading contributor to death, disability and ill-health among Australian women aged between 15 and 44.

[74] The Australian Institute of Criminology reported that of the 2,631 homicide incidents in Australia over a 10-year period (to 30 June 2012), 1,088 or 41 per cent were classified as domestic/family homicides. 76Intimate partner homicides account for 23 per cent of all homicides in Australia.77 The majority of victims of domestic/family homicides were female and accounted for 75 per cent of victims in intimate partner homicides. The offenders were usually male. 78

[75] Within the category of domestic/family homicides, intimate partner homicides account for 56 per cent of deaths. Children comprised the second most frequent group of victims, accounting for 21 per cent of deaths. 79

[76] The Personal Safety Survey (PSS) conducted by the Australian Bureau of Statistics (ABS) collects information about the nature and extent of violence experienced by men and women since the age of 15 years and their experience of violence in the 12 months prior to the survey. The ABS has conducted the PSS on two occasions (2005 and 2012) and undertook the Women’s Safety Survey in 1996. The design of each survey is similar but not comparable in every way.

[77] The most relevant data for our purposes is the statistics in relation to partner violence. Partner violence refers to any incident of sexual assault, sexual threat, physical assault or physical threat by a current and/or previous partner. The term ‘partner’ in the PSS is used to describe a person the survey respondent lives with, or lived with at some point, in a married or de facto relationship. It includes a partner the survey respondent is living with at the time of experiencing violence; or a partner the survey respondent is no longer living with at the time of experiencing violence. The PSS also uses the term ‘intimate partner’ to describe a ‘partner’ as defined above or a boyfriend/girlfriend or date or an ex-boyfriend/ex-girlfriend.

[78] Dr Cox gave evidence about findings from the PSS.

[79] As to the prevalence of partner violence against women Dr Cox’s evidence, based on PSS data, was as follows:

‘One in four women in Australia have experienced violence by an intimate partner they may or may not have been living with (25.1% or 2,194,200) - approximately two-thirds of these women have lived with the violent partner at some time (16.9% or 1,479,900).

Of women who have lived with their violent partner, most had experienced more than one incident of violence. For instance, 73% of women who had experienced violence by a former cohabiting partner reported that the violence occurred more than once: this is close to a million women (925,100). Of these women who had experienced abuse more than once, 347,900 women reported having experienced abuse all or most of the time, with 197,200 reporting abuse that had happened a little of the time.

One in fifty women in Australia experienced at least one incident of violence by an intimate partner (including cohabiting and non-cohabiting) in the 12 months prior to the PSS survey

(2.1%, 186,900): when limited to cohabiting partner, this drops to 1.5% (132,500).

Women who have experienced male intimate partner violence represent two thirds of all women who have experienced violence by a male.’ 80

[80] Family and domestic violence is ubiquitous. One in four women in Australia have experienced such violence (or almost 2.2 million women). Family and domestic violence affects not only those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. The Majority and Minority Decisions addressed this evidence and we do not propose to repeat that analysis.

[81] The PSS also produces data about the impact of family and domestic violence and workplaces.

[82] Chart 1 is based on data from the 2005 PSS and shows that most people who had experienced violence since the age of 15 years, whether by a current or previous partner, were employed.

Chart 1 81

Experience of violence by current/previous partner since the age of 15 years, by labour force status, all persons

Note: Estimate of unemployed for those who experienced violence by current partner has a relative standard error of 25% to 50% and should be used with caution.

[83] Chart 2 is based on data from the 2012 PSS and shows the proportion of females who had experienced violence by a current partner since the age of 15 years, by frequency of violence.

[84] Almost two-thirds (65.1 per cent) of females who had experienced current partner violence since the age of 15 years reported that their current partner had been violent more than once.

Chart 2 82

Experience of violenceby current partner since the age of 15 years, females, by frequency of violence

Note: Estimate of all/most of the time for has a relative standard error of 25% to 50% and should be used with caution.

[85] The same data shows that around the same proportion of males who had experienced current partner violence since the age of 15 years reported that their current partner had been violent more than once. In addition, of those males who had experienced previous partner violence since the age of 15 years, around a half reported that their previous partner had been violent more than once. In comparison, 73.0 per cent of females who had experienced previous partner violence since the age of 15 years reported that their previous partner had been violent more than once. 83

[86] Table 1 shows the number and proportion of males and females who took time off work in the 12 months after the most recent incident of violence, by type of assault and gender of perpetrator.

[87] This data does not identify the relationship of the perpetrator to the victim, so family/domestic violence incidents cannot be determined.

[88] Males who had experienced assault since the age of 15 years were most likely to have been physically assaulted by another male, and were more likely to take time off work relative to other cases of violence.

[89] Females who had experienced assault since the age of 15 were most likely to have been physically assaulted by a male, and were most likely to take time off work relative to other cases of violence.

Table 1 84

Experience of assault since the age of 15 years, whether took time off work in the 12 months after the most recent incident of violence by type of assault and gender of perpetrator

Took time off work during the 12 months after the most recent incident^(a)		Did not take time off work during the 12 months after the most recent incident^(a)		Did not work during the 12 months after the most recent incident^(a)		Total persons who experienced assault^(a)
'000	%	'000	%	'000	%	'000	%
Males who have experienced assault since the age of 15^(b)
Sexual assault by a male	np	**2.8	*59.1	81.7	np	np	72.3	100.0
Sexual assault by a female	**8.3	**6.4	107.2	82.1	*15.1	*11.6	130.6	100.0
Physical assault by a male	199.2	8.6	1,718.8	74.0	404.8	17.4	2,322.8	100.0
Physical assault by a female	*47.5	*6.5	576.4	79.4	102.1	14.1	726.0	100.0
Females who have experienced assault since the age of 15^(b)
Sexual assault by a male	93.2	10.9	453.7	53.2	306.0	35.9	852.8	100.0
Sexual assault by a female	**2.1	**8.3	16.2	63.8	*7.1	*28.0	25.4	100.0
Physical assault by a male	238.6	13.9	968.9	56.5	508.8	29.6	1,716.3	100.0
Physical assault by a female	22.9	5.1	271.7	60.6	153.4	34.2	448.0	100.0

Note: *estimate has a relative standard error of 25% to 50% and should be used with caution.

**estimate has a relative standard error greater than 50% and is considered too unreliable for general use.

(a) Components are conceptually unable to be added together to produce an aggregated total about 'time off work'. Persons may have experienced more than one of the four different types of assault and are included separately for each type they have experienced. As a person's actions will differ depending on the type of violence they experience, conceptually it would be invalid to add together actions for all of the different types of violence. For example, if a person had taken time off work for their most recent incident of physical assault by a male but had not taken time off work for their most recent incident of sexual assault by a male, it is impossible to calculate an estimate of whether or not time was taken off work for "violence" - as it both has and hasn't been.

(b) Excludes incidents that occurred more than 20 years ago.

[90] The emotional and personal costs of family and domestic violence cannot be measured; but some of its effects can, including the impact on health and children, and the employment and financial consequences. We wish to briefly canvass these effects below, focusing on employment and financial consequences.

Impact on health

[91] The Victorian Health Promotion Foundation reviewed the health costs of violence in a 2004 report titled The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence (VicHealth Report). 85

[92] The VicHealth Report found that intimate partner violence is the leading contributor to death, disability and ill-health in Australian women aged 15 to 44 in Victoria. Intimate partner violence was also found to be more damaging to the health of women aged 15 to 44 than any other well-known risk factors for chronic disease, including high blood pressure, obesity and smoking. 86

[93] Family violence can also exacerbate existing mental health problems and increase the risk of subsequent depression. 87

Impact on children

[94] Children living with domestic violence have much higher rates of depression and anxiety and trauma symptoms. 88

Employment and financial consequences

[95] Women who are experiencing or have experienced domestic violence have a more disrupted work history; are on lower personal incomes; have had to change jobs frequently; and are more likely to be employed in casual and part-time work, than women with no experience of violence. 89

[96] The PSS has found that about 145,700 employed women took time off work as a result of their most recent incident of physical assault by a male cohabitating partner. For employed women who had been sexually assaulted by a male cohabitating partner, about 29,000 took time off work as a result of their most recent incident. 90

[97] Dr Cox observed that the PSS confirmed that separation from a violent partner is difficult, and is associated with an elevated risk of violence on separation, and with financial hardship following separation. 91 Two out of three women who left violent partners moved away from their homes, and seven out of 10 women who left violent relationships reported leaving behind property or assets.92

[98] As to the financial impact of such violence, Confidential Witness 1 gave evidence of incurring legal costs of over $6,000 to prepare for one court attendance. 93 Confidential Witness 3 gave evidence that over the period of an abusive relationship that continued for three years, she lost over $90,000.94

[99] Family and domestic violence may give rise to complex legal proceedings in multiple jurisdictions. In her evidence, Ms Smallwood (a senior lawyer at Women’s Legal Services, Victoria) provided an example of a ‘typical client’ who may have:

(a) children and property matters in the Federal Circuit Court, as well as urgent interim applications in relation to the same proceedings;

(b) divorce proceedings in the Federal Circuit Court or Family Court;

criminal proceedings;

(d) Victim of Crime assistance proceedings; and

(e) debt issues that require resolution through the relevant agencies. 95

[100] Such a client will have little control over the timing of these matters or how long they will take to resolve. Court hearings will usually be during working hours and there is limited flexibility with respect to hearing dates, which are set by the court. 96

[101] Around 62 per cent of women who experienced domestic violence in the last 12 months were in paid work. 97

[102] Employment is an important pathway out of violent relationships. Sustained periods of employment can provide financial security, independence, social networks and increased self-esteem. 98This point is reinforced by the experiences of the ACTU confidential witnesses, who each spoke about the different kinds of support they received from their employers at various times.

[103] We conclude this Chapter by noting that a number of Australian studies have sought to assess the aggregate cost of violence against women, particularly domestic violence. The ACTU referred to the most recent report by PwC, A High Price to Pay – the Economic Case for Preventing Violence Against Women 99 (PwC Report). The PwC Report was submitted to the Victorian Royal Commission into Family Violence in November 2015 and used data based on the 2012 PSS.

[104] Two other reports are also relevant. KPMG prepared a report in conjunction with the National Plan in 2009, The Cost of Violence Against Women and their Children 100 (KPMG Report), and Access Economics was commissioned by the Office of the Status of Women in 2004 to prepare The Cost of Domestic Violence to the Australian Economy101 (Access Economics Report).

[105] Using an estimate of 470,309 women who experienced partner violence in the year 2014-15, 102 the PwC Report found that the cost to the Australian economy of women experiencing physical violence, sexual violence or emotional abuse by a partner is $12.6 billion. The PwC Report estimated the cost of lost productivity as a result of domestic violence as $2.1 billion.103

[106] The Victorian Government, Royal Commission into Family Violence Report summarised the findings of the three reports as follows: 104

Report	Scope	Year	Estimate
Access Economics	Domestic violence (male and female victims)	2002/03	$8.1 billion
KPMG	Domestic violence against women and children (excludes male victims) and non domestic sexual assault (excludes male victims)	2007/08 2021/22	$13.6 billion $15.6 billion
PwC	Partner violence – physical violence, sexual violence or emotional abuse by current or previous partner perpetrated against women (excludes male victims)	2014/15	$12.6 billion
PwC	All violence against women - physical violence, sexual violence or emotional abuse (by a partner) or stalking by any person perpetrated against women (excludes male victims)	2014/15	$21.6 billion

[107] In the following two Chapters we deal with the preliminary views expressed in the Majority Decision.

4. Accessing personal/carer’s leave - jurisdiction

[108] As related earlier, the Majority Decision expressed the preliminary view that ‘employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave’. 105

[109] The August 2017 Statement 106 attached a list of issues to provide guidance to the parties as to the matters to be addressed in written submissions on this preliminary view. The first issue in relation to the proposed extension of the NES personal/carer’s leave entitlement to family and domestic violence leave was jurisdictional:

‘Does the Full Bench have jurisdiction to extend the NES entitlement to personal/carer’s leave to incorporate domestic violence leave?’

[110] Submissions on this issue were lodged by the ACTU, ACCI, AMIC, NatRoad and Ai Group.

[111] The ACTU, ACCI, AMIC, NatRoad and Ai Group all submit that the Commission does not have jurisdiction to provide for paid personal/carer’s leave under the NES to be taken for reasons relating to family or domestic violence in circumstances not already covered by the NES, albeit for varying reasons.

[112] The August 2017 Statement refers to the Background Paper prepared by Commission staff, which identified key issues in the drafting of a family and domestic violence leave model term and set out three proposed model terms for consideration. For the purpose of considering the jurisdictional question, it is not necessary to settle these drafting issues. It suffices to assume that any award term extending the paid personal/carer’s leave entitlement to incorporate family and domestic violence leave, will entail an entitlement to take the leave for reasons related to domestic violence in circumstances where there is no entitlement to take the leave under the terms of the NES.

[113] Section 136(1) of the Act provides for terms that may or must be included in a modern award, while s.136(2) prohibits the inclusion of certain terms in an award:

‘136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).’

[114] Section 136(1) provides that a modern award must only include terms that are permitted or required under ss.136(1)(a)-(d). In relation to s.136(1)(a), s.139(1)(h) in Subdivision B of Division 3 of Part 2-3 of the Act, permits a modern award to include terms about ‘leave, leave loadings and arrangements for taking leave’. As submitted by the ACTU, 107 s.139(1)(h) would encompass a term extending paid personal/carer’s leave to incorporate family and domestic violence leave.

[115] Section 136(2) prohibits award terms that are proscribed by Subdivision D of Division 3 of Part 2-3 of the Act or that contravene s.55. Subdivision D does not include any relevant proscription. Consequently, a term extending paid personal/carer’s leave to incorporate family and domestic violence leave could be included in a modern award if and only if the term would not contravene s.55.

[116] Section 55 of the Act provides:

‘55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).’

[117] Section 55(2)(a) permits a modern award to include terms ‘expressly permitted’ by Part 2-2 of the Act. In relation to personal/carer’s leave, Part 2-2 only expressly permits a modern award to include terms providing for an employee to cash out paid personal/carer’s leave (s.101) and terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave or unpaid carer’s leave (s.107(5)).

[118] Section 55(2)(b) permits a modern award to include terms ‘expressly permitted’ by regulations made for the purposes of s.127. We will return to s.55(2)(b) later. It suffices for present purposes to note that, to date, no such regulations have been made.

[119] Consequently, an award term extending paid personal/carer’s leave to incorporate family and domestic violence leave would not be permitted by s.55(2).

[120] Section 55(1) provides that a modern award must not ‘exclude’ the NES ‘or any provision of’ the NES. However, s.55(4) permits an award to include certain ‘ancillary or incidental’ terms and terms that ‘supplement’ the NES. Such terms do not contravene s.55(1) (s.55(7)).

[121] It follows that an award term extending paid personal/carer’s leave to incorporate family and domestic violence leave will contravene s.55 if it excludes the NES or any provision of the NES within the meaning of s.55(1) and it is not a term permitted by s.55(4).

[122] The ACTU submits that a modern award term extending access to personal/carer’s leave for purposes other than those provided for in the NES ‘potentially excludes … the minimum NES entitlement to 10 days personal or carer’s leave’. 108 Ai Group submits that such an award term would exclude the minimum NES entitlement and contravene s.55(1).109 NatRoad makes a similar submission.110

[123] The NES comprise Divisions 3 to 12 of Part 2-2 of the Act (s.61(3)). Paid personal/carer’s leave is provided for in Division 7 of Part 2-2.

[124] The Act contains no express definition of ‘paid personal/carer’s leave’. Section 96 of the Act deals with the quantum and accrual of paid personal/carer’s leave and s.97 deals with the taking of the leave:

‘96 Entitlement to paid personal/carer’s leave

Amount of leave

(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.

Note 1: The notice and evidence requirements of section 107 must be complied with.

Note 2: If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave under section 80.’

[125] Section 99 provides for payment for paid personal/carer’s leave:

‘99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work in the period.’

[126] Notice and evidence requirements for paid personal/carer’s leave are set out in s.107:

‘107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.’

[127] On its terms, s.97 permits an employee to take paid personal/carer’s leave for the reasons specified in ss.97(a) and (b). On the assumption made earlier, any award term extending paid personal/carer’s leave to incorporate family and domestic violence leave will entail an entitlement to take leave in circumstances not covered by ss.97(a) and (b). Section 97 does not clearly prohibit an employee taking paid personal/carer’s leave in such circumstances.

Attachment B – List of submissions filed

Item no.	Document title	Organisation	Document date
1	Submission in reply – preliminary views	MEA	3/10/2017
2	Submission in reply – preliminary views – background paper – Attachment A	ACTU	2/10/2017
3	Submission in reply – preliminary views	Ai Group	1/10/2017
4	Submission in reply – preliminary views	TWU	29/09/2017
5	Submission in reply – preliminary views - background paper	AMIC	29/09/2017
6	Submission in reply – background paper	ACCI	29/09/2017
7	Submission – preliminary views - amended	ACTU	1/09/2017
8	Submission – preliminary views	ACTU	1/09/2017
9	Submission – preliminary views	ACCI	1/09/2017
10	Submission – preliminary views	AMIC	1/09/2017
11	Submission – preliminary views	NatRoad	1/09/2017
12	Submission – preliminary views	APSC	31/08/2017
13	Submission – preliminary views	Ai Group	30/08/2017
14	Submission	Dr P Harpur and others	14/08/2017
15	Submission – future conduct	ACCI	28/07/2017
16	Submission – future conduct	Ai Group	28/07/2017
17	Submission – future conduct	ACTU	28/07/2017
18	Submission – inclusion of the Australian Government Industry Award	APSC	28/07/2017
19	Submission – future conduct	AMIC	28/07/2017
20	Submission – future conduct	NatRoad	27/07/2017
21	Submission – inclusion of enterprise awards	CPSU	19/07/2017
22	Submission	National Road Transport Association	05/04/2017
23	Submission – response to questions	ACTU	04/04/2017
24	Submission – response to questions	Ai Group	03/04/2017
25	Submission – response to questions	ACCI	03/04/2017
26	Submission - further information	Victorian Government Solicitor's Office	06/12/2016
27	Submission	Brisbane Catholic Education	01/12/2016
28	Submission	ACTU	28/11/2016
29	Submission	ACCI	28/11/2016
30	Submission	Ai Group	28/11/2016
31	Submission - tender list	ACTU	25/11/2016
32	Submission	ACT Government	23/11/2016
33	Submission	Surf Coast Shire Council	16/09/2016
34	Submission	Council of Greater Dandenong	15/11/2016
35	Submission	Queensland Government	14/11/2016
36	Submission - objection to evidence - ACTU	Ai Group	13/11/2016
37	Witness statements and expert evidence - updated	ACTU	11/11/2016
38	Witness statement - J. Stott - revised - redacted	ACTU	11/11/2016
39	Submission	NRA	02/11/2016
40	Submission in reply - witness statement and expert report	ACTU	17/10/2016
41	Submission - amended witness statement	ACTU	14/10/2016
42	Submission in reply	AHRC	14/10/2016
43	Submission - source documents	ACCI	12/10/2016
44	Submission in reply	ACTU	05/10/2016
45	Submission	National Foundation for Australian Women	05/10/2016
46	Reply submission and witness statements	Ai Group	19/09/2016
47	Submission	PGA	19/09/2016
48	Submission	AFEI	19/09/2016
49	Submission	AMIC	16/09/2016
50	Submission	ACCI	16/09/2016
51	Submission	NFF	15/09/2016
52	Submission	Aged Care Services Australia Group	15/09/2016
53	Submission and witness statement	Pricewaterhouse Coopers	20/06/2016
54	Submission and witness statements	ACTU	01/06/2016
55	Submission - confidentiality matters	ACTU	26/05/2016
56	Submission	Victorian Government	16/05/2016
57	Submissions	AHRC	12/05/2016
58	Outline of Expert Evidence	ACTU	05/05/2016
59	Further submission	Ai Group	21/08/2015
60	Further submission	ACCI and others	21/08/2015
61	Further submission	ACTU	18/08/2015
62	Further submission and list of authorities	Ai Group	11/08/2015
63	Correspondence and submissions	ACTU	15/06/2015
64	Submission on preliminary issues	NFF	20/04/2015
65	Submission - Jurisdictional objection	Ai Group	20/04/2015
66	Submission	HIA	20/04/2015
67	Outline of submissions	ACCI	20/04/2015
68	Draft determinations	ACTU	02/03/2015
69	Submission - draft clauses	ACTU	13/02/2015
70	Submissions	ACTU	11/11/2014
71	Submissions	ACCI	11/11/2014
72	Submission	Accommodation Association of Australia	11/11/2014
73	Submission	Australian Hotels Association	11/11/2014
74	Submission	Private Hospital Industry Employers' Associations	11/11/2014
75	Submission	Australian Federation of Employers and Industries	11/11/2014
76	Submission	Ai Group	11/11/2014
77	Submission	Housing Industry Association	11/11/2014
78	Outline of Submissions	NFF	11/11/2014
79	Submission	Restaurant and Catering Industrial	11/11/2014
80	Addendum to 10 November 2014 submission	Australian Entertainment Industry Association	11/11/2014
81	Outline of submissions	Australian Entertainment Industry Association	10/11/2014
82	Outline of Claim	United Firefighters Union of Australia	28/10/2014
83	Outline of Claim	ACTU	28/10/2014

Attachment C – List of modern awards to be varied

Aboriginal Community Controlled Health Services Award 2010

Aged Care Award 2010

Air Pilots Award 2010

Aircraft Cabin Crew Award 2010

Airline Operations – Ground Staff Award 2010

Airport Employees Award 2010

Alpine Resorts Award 2010

Aluminium Industry Award 2010

Ambulance and Patient Transport Industry Award 2010

Amusement, Events and Recreation Award 2010

Animal Care and Veterinary Services Award 2010

Aquaculture Industry Award 2010

Architects Award 2010

Asphalt Industry Award 2010

Banking, Finance and Insurance Award 2010

Black Coal Mining Industry Award 2010

Book Industry Award 2010

Broadcasting and Recorded Entertainment Award 2010

Building and Construction General On-site Award 2010

Business Equipment Award 2010

Car Parking Award 2010

Cement and Lime Award 2010

Cemetery Industry Award 2010

Children’s Services Award 2010

Cleaning Services Award 2010

Clerks – Private Sector Award 2010

Coal Export Terminals Award 2010

Commercial Sales Award 2010

Concrete Products Award 2010

Contract Call Centres Award 2010

Corrections and Detention (Private Sector) Award 2010

Cotton Ginning Award 2010

Dredging Industry Award 2010

Dry Cleaning and Laundry Industry Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Electrical Power Industry Award 2010

Electrical, Electronic and Communications Contracting Award 2010

Fast Food Industry Award 2010

Fire Fighting Industry Award 2010

Fitness Industry Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Funeral Industry Award 2010

Gardening and Landscaping Services Award 2010

Gas Industry Award 2010

General Retail Industry Award 2010

Graphic Arts, Printing and Publishing Award 2010

Hair and Beauty Industry Award 2010

Health Professionals and Support Services Award 2010

Higher Education Industry – Academic Staff – Award 2010

Higher Education Industry – General Staff – Award 2010

Horse and Greyhound Training Award 2010

Horticulture Award 2010

Hospitality Industry (General) Award 2010

Hydrocarbons Field Geologists Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Joinery and Building Trades Award 2010

Journalists Published Media Award 2010

Labour Market Assistance Industry Award 2010

Legal Services Award 2010

Live Performance Award 2010

Local Government Industry Award 2010

Mannequins and Models Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Marine Tourism and Charter Vessels Award 2010

Marine Towage Award 2010

Maritime Offshore Oil and Gas Award 2010

Market and Social Research Award 2010

Meat Industry Award 2010

Medical Practitioners Award 2010

Mining Industry Award 2010

Miscellaneous Award 2010

Mobile Crane Hiring Award 2010

Nursery Award 2010

Nurses Award 2010

Oil Refining and Manufacturing Award 2010

Passenger Vehicle Transportation Award 2010

Pastoral Award 2010

Pest Control Industry Award 2010

Pharmaceutical Industry Award 2010

Pharmacy Industry Award 2010

Plumbing and Fire Sprinklers Award 2010

Port Authorities Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Poultry Processing Award 2010

Premixed Concrete Award 2010

Professional Diving Industry (Industrial) Award 2010

Professional Diving Industry (Recreational) Award 2010

Professional Employees Award 2010

Quarrying Award 2010

Racing Clubs Events Award 2010

Racing Industry Ground Maintenance Award 2010

Rail Industry Award 2010

Real Estate Industry Award 2010

Registered and Licensed Clubs Award 2010

Restaurant Industry Award 2010

Salt Industry Award 2010

Seafood Processing Award 2010

Seagoing Industry Award 2010

Security Services Industry Award 2010

Silviculture Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010

Sporting Organisations Award 2010

State Government Agencies Administration Award 2010

Stevedoring Industry Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Supported Employment Services Award 2010

Surveying Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industries Award 2010

Timber Industry Award 2010

Transport (Cash in Transit) Award 2010

Travelling Shows Award 2010

Vehicle Manufacturing, Repair, Services and Retail Award 2010

Waste Management Award 2010

Water Industry Award 2010

Wine Industry Award 2010

Wool Storage, Sampling and Testing Award 2010

Attachment D – List of cases

4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177

4 yearly review of Modern Awards – Penalty Rates – Hospitality and Retail sectors [2017] FWCFB 1001

Application by Canavan Building Pty Ltd [2014] FWCFB 3202

Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121

Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FWCFB 3124

Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123

Edwards v Giudice (1999) 94 FCR 561

Fire Fighting Industry Award decision [2016] FWCFB 8025

National Retail Association v Fair Work Commission (2014) 225 FCR 154

O’Sullivan v Farrer (1989) 168 CLR 210

Parental Leave Test Case 2005 (2005) 143 IR 245

Preliminary Jurisdictional Issues decision [2014] FWCFB 1788

Re 4 Yearly Review – Alleged NES Inconsistencies (2015) 249 IR 358

Schweppes Australia Pty Ltd v United Voice – Victoria Branch [2017] FWCFB 4047

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556

1 ACTU submissions, 28 October 2014.

2 [2015] FWCFB 5585 at [2].

3 ACTU submission 15 June 2015, Attachment A.

4 [2015] FWCFB 5585.

5 Ibid at [21].

6 [2017] FWCFB 1133 at [146].

7 Ibid at [140].

8 Ibid at [146].

9 [2017] FWCFB 3494.

10 Ibid at [6].

11 [2017] FWCFB 3865.

12 [2017] FWCFB 4047.

13 Ibid at [17]–[19].

14 [2017] FWC 5192.

15 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].

16 O’Sullivan v Farrer (1989) 168 CLR 210 at p. 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

17 See 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [40]–[48].

18 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [85]. Although the Court’s observations were directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) they are apposite to s.156(5).

19 Ibid at [86]. While the Full Federal Court was considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5) of the FW Act, which is in substantially the same terms.

20 [2017] FCAFC 123.

21 Ibid at [28]-[29].

22 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140].

23 [2017] FWCFB 1001.

24 Ibid at [269].

25 Edwards v Giudice (1999) 94 FCR 561 at para 5; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

26 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

27 (2012) 205 FCR 227.

28 Ibid at [35]–[37] and [46].

29 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.

30 Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [37].

31 [2014] FWCFB 1788.

32 Ibid at [36].

33 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].

34 National Retail Association v Fair Work Commission (2014) 225 FCR 154.

35 Ibid at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review.

36 [2017] FCAFC 123 at [23].

37 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

38 [2017] FCAFC 161.

39 Ibid at [48].

40 [2017] FWCFB 1001 at [230]-[268]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [23].

41 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [34].

42 [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

43 [2017] FCAFC 161 at [49] and [65].

44 Ibid at [53].

45 [2017] FWCFB 1001 at [128].

46 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [18].

47 See, for example, The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556.

48 Transcript, 14 November 2016 at [34]-[526].

49 Transcript,14 November 2016 [537]-[679].

50 Transcript, 14 November 2016 at [686]-[802].

51 Transcript, 15 November 2016 at [873]-[954] and [998]-[1135].

52 Transcript, 15 November 2016 at [1140]-[1255].

53 Transcript, 15 November 2016 at [1267]-[1325].

54 Transcript, 15 November 2016 at [1327]-[1407].

55 Transcript, 16 November 2016 at [1432]-[1490].

56 Transcript, 16 November 2016 at [1515]-[1617].

57 Transcript, 16 November 2016 at [1655]-[1688].

58 Transcript, 17 November 2016 at [1942]-[2010].

59 Transcript, 17 November 2016 at [2013]-[2081].

60 Transcript, 17 November 2016 at [2082]-[2126].

61 Transcript, 17 November 2016 at [2134]-[2220].

62 Transcript, 18 November 2016 at [2234]-[2331].

63 Transcript, at 17 November 2016 at [1726]-[1930].

64 Transcript, 18 November 2016 at [2356]-[2518].

65 [2017] FWCFB 3494 at [49].

66 Ibid.

67 Ibid at [56].

68 Ibid at [54].

69 Ibid at [60]-[61].

70 Ibid at [51].

71 Department of Social Services (2011), National plan to reduce violence against women and their children 2010–2022, Australian Government, p. 1.

72 ACTU final submission, 28 November 2016 at [42]; As the ACTU submits ‘[t]he centrality of control to an understanding of family and domestic violence is reflected in statutory definitions of family and domestic violence in s. 4AB of the Family Law Act 1975 and s. 5 of the Family Violence Protection Act 2008 (Vic)’.

73 Exhibit B4, Expert Report of Dr Michael Flood at [2.6].

74 Exhibit B4 at [3.20].

75 Cussen T & Bryant W, Domestic/family homicide in Australia, Research in Practice, No.38 May 2015, Australian Institute of Criminology. at Ibid at p. 2.

77 Ibid at p. 2.

78 Ibid, p. 3.

79 Ibid.

80 Exhibit B1, Expert Report of Dr. Peta Cox at [7.2]-[7.5].

81 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2005, Catalogue No. 4906.0.

82 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.

83 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.

84 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.

85 ), The health costs of violence: measuring the burden of disease caused by intimate partner violence, Victorian Government.

86 Victorian Health Promotion Foundation (VicHealth) and Department of Human Services (2004), The health costs of violence: measuring the burden of disease caused by intimate partner violence, Victorian Government, p. 10.

87 Lum M et al, (2016), Examination of the health outcomes of intimate partner violence against women: State of knowledge paper, Australia’s National Research Organisation for Women’s Safety, March, p20..

88 Exhibit ACTU B-6: Professor Cathy Humphreys, Expert report of Professor Cathy Humphreys at [6.2].

89 McFerran, L (2011) ‘Safe at Home, Safe at Work’, National Domestic Violence and the Workplace Survey, Australian Domestic and Family Violence Clearinghouse, A Project of the Centre for Gender-Related Violence Studies and Micromex Research, University of New South Wales (National Domestic Violence Workplace Survey 2011), page 2.

90 Cox P (2015) Violence Against women: Additional analysis of the Australian Bureau of Statistics’ Personal Safety Survey, 2012 (Cox ANROWS Report 2015) at [4.3].

91 Exhibit B1 at [8.24]–[8.25], [8.27]–[8.30].

92 Exhibit B1 at [8.28], [8.30].

93 Exhibit B23, Confidential Witness 1, at [23].

94 Exhibit B24, Confidential Witness 2, at [10].

95 Exhibit B11, Witness Statement of Emma Smallwood [38].

96 Exhibit B11 at [40]–[41].

97 Exhibit B5, Cortis N, Women’s economic security and domestic violence: the role of employment, employment support and employment protection at [21] ,. taken from PSS 2012, ABS Table A17 ‘Women’s experience of violence by intimate partner during last 12 months’.

98 See for example Cortis Report, McFerran Report and Exhibit B17, Witness Statement of Jocelyn Bignold at 36. Also see S Patton, Pathways: How Women Leave Violent Men, Government of Tasmania, Hobart, 2003, p xviii; R Braaf and I Barrett Meyering, Seeking Security: Women's Economic Wellbeing During and Following Domestic Violence, Australian Domestic and Family Violence Clearinghouse, Sydney, 2011.

99 PwC (2015), A high price to pay: the economic case for preventing violence against women, a report prepared for OurWatch and VicHealth, November 2015.

100 KPMG (2009), The cost of violence against against women and their children, The National Council to Reduce Violence Against Women and Their Children, March 2009.

101 Access Economics (2004), The cost of domestic violence to the Australian economy, a report prepared for the Office of the Status of Women, Department of the Prime Minister and Cabinet.

102 Estimates were calculated by applying the respective prevalence rates in 2012 to the population of women aged 18 and over in 2014-15. ABS analysis of the Personal Safety Survey showed no statistically significant increase in the prevalence of violence between the 2005 and 2012 survey. Therefore it was assumed that there is no increase in the prevalence rate of violence between 2012 and the present.

103 PwC (2015), A high price to pay: the economic case for preventing violence against women, a report prepared for Our Watch and VicHealth, November, p. 11.

104 Neave M, Faulkner P & Nicholson T (2016), Royal Commission into family violence: summary and recommendations, Victorian Government, Royal Commission into Family Violence, March, Volume VI at p. 222.

105 [2017] FWCFB 3494 at [6].

106 [2017] FWCFB 4047.

107 ACTU submissions, 1 September 2017 at [57].

108 ACTU submissions, 1 September 2017 at [54].

109 Ai Group submissions, 30 August 2017 at [63].

110 NatRoad submissions, 1 September 2017 at [95]-[98].

111 4 Yearly Review of Modern Awards – Alleged NES Inconsistencies, [2015] FWCFB 3023, (2015) 249 IR 358.

112 Ibid at [37].

113 Ai Group submissions, 30 August 2017 at [61].

114 Ai Group submissions, 30 August 2017 at at [62]-[63].

115 NatRoad submissions, 1 September 2017 at [98].

116 Re Canavan Building Pty Ltd [2014] FWCFB 3202.

117 Ibid at [36].

118 ACTU submissions, 1 September 2017 at [67].

119 ACTU submissions, 1 September 2017 at [71].

120 ACTU submissions, 1 September 2017 at [72] and [54].

121 AMIC submissions, 1 September 2017 at [112]-[115].

122 Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

123 In January 2004 the Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (Cth) had introduced into Schedule 1A of the WR Act a set of minimum employment conditions for Victorian employees. These were based on the Fair Employment Bill 2000 (Vic) and included paid ‘personal leave’ and separate ‘bereavement leave’. Paid personal leave accrued at the rate of 8 days per year, and was available for absences ‘due to personal illness or injury’ (sick leave) and ‘for the purposes of caring for a member of the employee’s immediate family or a member of the employee’s household who is sick and requires care and support’ (carer’s leave). Use of paid personal leave for carer’s leave was capped at 5 days per year.

124 (2005) 143 IR 245.

125 Ai Group submissions, 30 August 2017 at [40]-[44].

126 Ai Group submissions, 30 August 2017 at [41].

127 Ai Group submissions, 30 August 2017 at [46].

128 Ai Group submissions, 30 August 2017 at [52].

129 Ai Group submissions, 30 August 2017 at [54]-[55].

130 ACTU submissions, 1 September 2017 at [54] and [73]-[74].

131 Ai Group submissions, 30 August 2017 at [54]-[55].

132 ACCI submissions, 1 September 2017 at [73].

133 Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FWCFB 3124.

134 ACTU submissions, 1 September 2017 at [73].

135 ACCI submissions, 1 September 2017 at [68]-[70].

136 ACTU submissions, 1 September 2017 at [76].

137 ACCI submissions, 1 September 2017 at [74].

138 [2017] FWCFB 3494 at [6].

139 Ai Group submissions, 1 October 2017 at [29]-[56].

140 Ai Group submissions, 1 October 2017 at [50].

141 Ai Group reply submission, Witness statement of Jenni Mandel, 19 September 2016.

142 Exhibit F4, Witness Statement of Jenni Mandel at [10]–[11].

143 Exhibit F4 at. [12].

144 Exhibit F4 at [14].

145 Exhibit F4 at [16]-[17].

146 Exhibit F4 at [20].

147 Exhibit F4 at [22]-[23].

148 Exhibit F4 at [26].

149 Exhibit F4 at [27].

150 Exhibit F4 at [28].

151 Exhibit F4 at [28].

152 Exhibit F4 at [30].

153 Exhibit F4 at [32].

154 Exhibit F4 at [34].

155 Exhibit F4 at [35].

156 Ai Group reply submission, 19 September 2016 at [450].

157 Ai Group reply submission, 19 September 2016 at [451]; Ai Group final submission, 28 November 2016 at [623].

158 Ai Group reply submission, 19 September 2016 at [461].

159 Ai Group submission, 28 November 2016 at [619]–[620].

160 Ai Group submission, 28 November 2016 at [621].

161 Ai Group reply submission, 19 September 2016 at [462].

162 Ai Group reply submission, 19 September 2016 at [464].

163 ACCI submission, 16 September 2016 at [8.28]–[8.29]. ACCI stated that these may include superseded or expired agreements no longer in use.

164 ACCI submission, 16 September 2016 at [8.32].

165 ACCI submission, 16 September 2016 at [8.33].

166 ACCI final submission, 28 November 2016 at [6.1].

167 ACCI final submission, 28 November 2016 at [6.4].

168 See Exhibits ACTU B-8, ACTU B-9, ACTU B-10, ACTU B-14 and ACTU B-15. The union officials are Gandy, O’Neil, Doleman, Kemppi and Jackson.

169 ACTU final submission, 28 November 2016 at [163].

170 ACTU final submission, 28 November 2016 at [163].

171 ACTU final submission, 28 November 2016 at [164].

172 ACTU final submission, 28 November 2016 at [165].

173 ACTU final submission, 28 November 2016 at [166]; Transcript, Friday 18 November 2016, [2438]–[2444]; [2470]–[2473]; [2486]–[2488].

174 [2015] FWCFB 3406 at [252]

175 [2017] FWCFB 3494 at [51].

176 Ibid at [39]-[46].

177 Ibid at [46].

178 Transcript, 20 October 2017 at [557]-[601].

179 Transcript, 19 October 2017 at [27]-[30] and [556].

180 See generally ACTU Submission 1 September 2017 at [9]-[13].

181 Transcript 19 October 2017 at [47].

182 Transcript 19 October 2017 at [50].

183 For example, ACCI Submission 29 September 2017 at [36]-[38].

184 Ai Group submission,. 29 September 2017 at [61].

185 s.104, Fair Work Act 2009 (Cth).

186 Transcript, 19 October 2017 at [58].

187 Transcript, 19 October 2017 at [58].

188 Ai Group submission, 30 August 2017 at [10]-[11].

189 MEA submission, 3 October 2017 at p.3

190 AMIC submission, 1 September 2017 at [47].

191 ACCI submission, 1 September 2017 at [20].

192 ACCI submissions, 1 September 2017 at [34].

193 ACCI submissions, 1 September 2017 at [33].

194 Transcript, 20 October 2017 at [476].

195 NatRoad submission, 1 September 2017 at [53].

196 Transcript, 20 October 2017 at [555].

197 No relevant regulations have been made.

198 Section 111(5) provides that for employees (other than casuals) paid leave for jury service is capped at 10 days. Casuals have no entitlement to paid leave. Unpaid jury service leave is uncapped.

199 Transcript, 20 October 2017 at [341]-[374]; Also see Ai Group’s submission 30 August 2017 at [12]-[16].

200 Breckenridge J, Cale J, Hameed S, McCaskie L & Tzoumakis S (2015), Implementation of domestic violence clauses—an employer’s perspective, Gendered Violence Research Network, University of New South Wales.

201 ACTU Submission 1 June 2016 at [7.29]-[7.31].

202 We note that this is the calculation after the adjustment and removal of an extreme outlier where a respondent noted 912 hours, refer to p.7 of the Report.

203 ACTU Submission1 June 2016 at [7.29]-[7.31].

204 Breckenridge J, Cale J, Hameed S, McCaskie L & Tzoumakis S (2015), Implementation of domestic violence clauses—an employer’s perspective, Gendered Violence Research Network, University of New South Wales, p.3

205 Ibid at p.7

206 Ibid at p. 12.

207 Ibid at Table 1. Table 1 does not tell us how many employees are employed in each sector, it simply provides a ‘description of the workplaces’.

208 Source: Australian Bureau of Statistics, Personal Safety, Australia, 2012, Catalogue No. 4906.0.

209 Transcript, 20 October 2017at [491]-[512].

210 Exhibit S1 at [19](a).

211 Transcript, 17 November 2016 at [1887].

212 Transcript, 20 October 2017 at [493].

213 Transcript, 17 November 2016 at [1888].

214 Transcript, 17 November 2016 at [1751]-[1754].

215 Exhibit S1 at [35].

216 ACTU Submission, 1 September 2017 at [40]; Transcript, 19 October 2017 at [66].

217 Ai Group submission 30 August 2017 at [26].

218 NatRoad submission, 1 August 2017 at [89].

219 NatRoad submission, 1 August 2017 at [89].

220 Transcript, 20 October 2017 at [447].

221 Transcript, 20 October 2017 at [521]-[530].

222 AMIC submission – Preliminary views, 1 September 2017 at [96].

223 AMIC submission – Preliminary views, 1 September 2017 at [101].

224 MEA Submission – Preliminary views, 3 October 2017 at p.2.

225 ACTU Final Submissions, 28 November 2016 at [6].

226 Re Metal, Engineering and Associated Industries Award 1998- Part 1 (2001) 105 IR 27; Re Request from the Minister for Employment and Workplace Relations – 28 March 2008 Award Modernisation (AM2008/1-12 (2008) 177 IR 364 at [47]-[50].

227 Transcript, 20 October 2017 at [389]-[401].

228 Transcript 20 October 2017 at [515]-[516].

229 Transcript, 20 October 2017 at [401].

230 Transcript, 19 October 2017 at [72].

231 Transcript, 19 October 2017 at [80]-[82].

232 Transcript, 19 October 2017 at [86].

233 ACCI submission1 September 2017 at [6.1].

234 Ai Group submission, 30 August 2017 at [31].

235 Transcript, 20 October 2017 at [518].

236 [2017] FWCFB 4047 at [18]-[19].

237 see [2014] FWCFB 5537 at [16]–[18].

238 APSC submission 28 July 2017.

239 NatRoad submission 28 July 2017.

240 NatRoad submission 1 September 2017 at [6].

241 See 4 yearly review of modern awards – Penalty Rates – Hospitality and Retail sectors [2017] FWCFB 1001 at [166]-[168].

242 [2012] FWCFB 4000 at [100]-[102].

243 [2017] FWCFB 3494 at [82].

244 [2017] FWCFB 1001 at [220]-[225].

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Re Four Yearly Review of Modern Awards - Family and Domestic Violence Leave