Family and domestic violence leave review 2021

[2022] FWCFB 57

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.156—4 yearly review of modern awards
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Family and domestic violence leave review 2021

(AM2021/55)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 11 APRIL 2022

Family and domestic violence leave review 2021 – leave to deal with family and domestic violence model term – provisional view confirmed – awards varied.

This decision concerns the model term for leave to deal with family and domestic violence, inserted into 123 modern awards on 30 July 2018 as part of the 4 yearly review.[1]

In our statement[2] of 9 March 2022 (the March 2022 Statement), we noted that the 5 modern awards set out below still contain the model term.

· Aged Care Award 2010

· Children’s Services Award 2010

· Fast Food Industry Award 2010

· Hair and Beauty Industry Award 2010

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

At paragraph [8] of the March 2022 Statement we expressed the provisional view that the model term should be deleted from these awards and replaced with the following reference to the entitlement to unpaid family and domestic violence leave contained in the Fair Work Act 2009[3]:

‘X. Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES.

NOTE 1: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

NOTE 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.’

Draft determinations giving effect to our provisional view were published with the March 2022 Statement.

Any parties who object to our provisional view were directed to file a submission outlining the reasons for their objection, by 25 March 2022. No objections were received. On 28 March 2022, the Australian Council of Trade Unions filed a submission in support of our provisional view.[4]

We confirm our provisional view to vary the awards in the manner set out above.

Determinations varying the awards will be issued with this decision. The operative date for the variations is 19 April 2022.

PRESIDENT

[1] [2018] FWCFB 3936.

[2] [2022] FWCFB 26.

[3] Inserted by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018.

[4] Australian Council of Trade Unions, submission, 28 March 2022, at paragraph 28.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved a review of the family and domestic violence leave model term inserted into 123 modern awards on 30 July 2018. Specifically, the FWC was tasked with deciding whether the model term should be deleted from five particular awards and replaced with a reference to the entitlement to unpaid family and domestic violence leave in the Fair Work Act 2009. The five awards in question were the Aged Care Award 2010, Children’s Services Award 2010, Fast Food Industry Award 2010, Hair and Beauty Industry Award 2010, and the Social, Community, Home Care and Disability Services Award 2010.

The legal issues before the FWC were whether the model term should be retained or replaced in these awards, and if the latter, what the appropriate replacement text should be. The FWC had to consider whether the model term provided sufficient clarity and protection for employees dealing with family and domestic violence, and whether a reference to the Fair Work Act 2009 would better serve the objective of providing such protection.

The FWC confirmed its provisional view to vary the awards as previously expressed in the March 2022 Statement, by deleting the model term and replacing it with a reference to the entitlement to unpaid family and domestic violence leave in the Fair Work Act 2009. The FWC noted that no objections were received from any party, and that the Australian Council of Trade Unions had filed a submission supporting the provisional view. The FWC determined that the replacement text would provide clearer and more comprehensive guidance to employers and employees regarding the handling of sensitive information related to family and domestic violence. The operative date for the variations is set for 19 April 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established