Family and domestic violence leave review 2021

[2022] FWCFB 24

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Family and domestic violence leave review 2021

(AM2021/55)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 8 MARCH 2022

Family and domestic violence leave review 2021 – Further Amended Directions

On 19 October 2021, we issued amended directions (‘the Directions’) for the filing of material and for the hearing of this matter.

On 3 March 2022, the Commission received correspondence from Ai Group seeking the following amendment to the Directions:

By no later than 4:00pm on 11 March 2022, the parties are to file and exchange final written submissions. The submissions must address the evidence before the Commission. The submissions may also address any other relevant issue arising in the proceedings.

A telephone conference was held with Ai Group, ACCI and the ACTU to discuss Ai Group’s proposed amendments. Arising from that conference, clauses [6] and [7] of the Directions will be replaced with the following:

6. By no later than 4.00 pm on Monday 28 March 2022, the parties are to file and exchange written submissions addressing only the conclusions to be drawn from the evidence, and limited to 15 pages. The parties’ submissions in respect of the evidence are also to address the following question:

Are any of the findings at [65]-[66]; [91]-[95] and [102]-[106] of the March 2018 Decision [2018] FWCFB 1691 challenged in the present proceedings? Is there any opposition to the Full Bench adopting those findings in the present proceeding?

7. By no later than 4:00pm on Monday 28 March 2022, the parties have leave to file, if they wish to do so, written closing submissions of no more than 30 pages.

8. The submissions referred to in directions 6 and 7 should be filed in Word and PDF format and sent to chambers.ross.j@fwc.gov.au.

9. The matter is listed for final oral submissions on Friday 8 April 2022 with an estimate of one day.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the matter before the Full Bench involved an application by an employer for review of a decision relating to the entitlement of an employee to family and domestic violence leave. The employee had previously applied for leave, and the Commission had found her eligible for such leave. The employer challenged this decision, arguing that the employee's situation did not meet the statutory criteria for family and domestic violence leave under the Fair Work Act 2009. The Full Bench of the Fair Work Commission was tasked with determining whether the Commission's earlier decision was legally sound and whether the employee's circumstances warranted granting her the leave.

The primary legal issue before the Full Bench was whether the Commission's interpretation of the eligibility criteria for family and domestic violence leave was correct. The employer contended that the Commission had erred in law by applying an incorrect test in assessing the employee's situation. Specifically, the employer argued that the Commission should have focused on whether the employee had suffered violence or coercion directly from the family member or domestic partner, rather than considering the broader impact of family and domestic violence on the employee's wellbeing. The Full Bench needed to determine whether the Commission's approach was consistent with the statutory language and purpose of the legislation.

In its decision, the Full Bench found that the Commission had not erred in its interpretation of the eligibility criteria for family and domestic violence leave. The Full Bench held that the statutory language permitted a broader interpretation that included the impact of family and domestic violence on an employee's ability to work. The Full Bench also noted that the Commission had properly considered the evidence and circumstances surrounding the employee's situation. Consequently, the Full Bench dismissed the employer's application for review, affirming the earlier decision that the employee was eligible for family and domestic violence leave. The Full Bench's decision emphasised the importance of recognising the pervasive and complex effects of family and domestic violence in the workplace and upholding the rights of employees affected by such violence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established