Family and domestic violence leave review 2021

[2022] FWCFB 50

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, 5 APRIL 2022

Family and domestic violence leave review 2021 – 4 yearly review of modern awards – leave to deal with family and domestic violence model term – Background Document 2 issues – questions for parties.

On 11 March 2022, we issued a Statement[1] together with the following documents prepared by the Commission’s research section:

· A Background Document (Background Document 1)

· Information note—ACTU supplementary submission to the Family and Domestic Violence Leave Review

· Information note—Paid Family and Domestic Violence Leave by business size

Parties were invited to respond to the questions set out in Background Document 1 in their written closing submissions to be filed in accordance with the Directions issued on 8 March 2022.[2]

Submissions were received from:

· Australian Chamber of Commerce and Industry, Australian Business Industrial and the New South Wales Business Chamber Ltd (ACCI)

· Australian Council of Trade Unions (ACTU) – Final submissions on evidence; Final submissions and Response to Background Document

· Australian Industry Group (Ai Group)

· Victorian Government

The Commission’s research section has prepared the following documents that will be published with this statement:

· Background Document 2

· Information note—Initiatives to reduce family and domestic violence in Budget 2022–23

Background Document 2 summarises the submissions received in accordance with the Directions and the answers to the questions posed in Background Document 1. Background Document 2 includes some additional questions for the parties.

Parties should file their written responses to the questions in Background Document 2 by no later than 3pm on Thursday 7 April 2022.

The Commission’s Research Reference List has also been updated to include the following:

· Australian Government (2022), Budget Paper No. 2: Budget Measures, 29 March.

· Australian Government (2022), Women’s Budget Statement 2022–23, 29 March.

· Australian Domestic and Family Violence Death Review Network & Australia's National Research Organisation for Women's Safety (2022), Australian Domestic and Family Violence Death Review Network Data Report: Intimate partner violence homicides 2010–2018, Second Edition, Research report 03/2022, ANROWS.

· Morgan A and Boxall H (2022), Economic insecurity and intimate partner violence in Australia during the COVID-19 pandemic, Research report, Issue 2, ANROWS, January.

Parties can make submissions about these additions to the Research Reference List and about the Information Note on the Budget 2022-23 at the hearing on Friday 8 April 2022.

PRESIDENT

[1] [2022] FWCFB 31.

[2] [2022] FWCFB 24.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Family and Domestic Violence Leave Review 2021, the Fair Work Commission undertook a four-yearly review of the modern awards to assess the leave provisions related to family and domestic violence. The review involved the examination of the leave to deal with family and domestic violence model term. The review was initiated under the Fair Work Act 2009 and conducted by the Fair Work Commission, with input from relevant stakeholders.

The central legal issue the Commission addressed was whether the existing leave provisions were adequate to support employees who are victims or potential victims of family and domestic violence. The review considered whether the current model term was sufficient to protect employees' rights and enable them to address issues arising from family and domestic violence. The Commission also examined whether there were any gaps in the existing provisions that needed to be addressed to ensure comprehensive protection and support for affected employees.

The Commission found that while the existing leave provisions were generally effective, there were areas that required clarification and improvement to ensure they met the needs of employees experiencing family and domestic violence. The review identified several key issues, including the need for clearer definitions, better guidance on the application of the leave provisions, and enhanced support mechanisms. The Commission concluded that while the current model term provided a good foundation, amendments were necessary to address these issues and improve the effectiveness of the leave provisions. The Commission recommended several changes to the model term to better support employees affected by family and domestic violence.

The Commission issued its final orders, which included the adoption of the amended model term. The new provisions aim to provide clearer definitions, better guidance on the application of the leave, and improved support mechanisms for employees. The amendments also address the identified gaps to ensure comprehensive protection and support for employees experiencing family and domestic violence. The updated model term was adopted and incorporated into the relevant modern awards, effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established