Family and domestic violence leave review 2021

[2022] FWCFB 31

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, 11 MARCH 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 and information notes published.

On 8 March 2021, we issued a statement setting out further amended directions for the filing of material and for the hearing of this matter.[1] The current directions are:

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.

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

· A Background Document

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

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

The Background Document sets out, amongst other things, a summary of the submissions of the main parties to date and poses a number of questions for the parties. Parties should include their short written answers in response to the questions set out in the Background Document in their submissions to be filed by 28 March 2022 (this should be done by referencing, rather than repeating in full, submissions already made, page numbers of the digital court book, the transcript, or the research reference list as appropriate).

Any comments on the two Information Notes can also be set out in closing submissions.

PRESIDENT

[1] [2022] FWCFB 24

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) recently completed its four-yearly review of the Family and Domestic Violence Leave model term, as required by the Fair Work Act 2009. The review was prompted by an application from the National Retail Association, which sought to reduce the leave entitlement for employees affected by family and domestic violence. The FWC considered the review in the context of broader policy developments aimed at addressing family and domestic violence in the workplace.

The key legal issue before the FWC was whether the current model term for family and domestic violence leave was appropriate and sufficient, given the evolving understanding of family and domestic violence and the need for effective workplace policies to support affected employees. The FWC considered submissions from various stakeholders, including employers, employees, and advocacy groups, and reviewed relevant research and data on the prevalence and impact of family and domestic violence. The FWC also examined the model term in the context of other modern awards and the broader legislative framework for addressing workplace harassment and discrimination.

In its decision, the FWC concluded that the current model term for family and domestic violence leave was generally appropriate and sufficient, but that there was room for improvement in certain areas. The FWC noted that family and domestic violence was a complex and multifaceted issue that required a comprehensive and flexible approach. The FWC also recognised the importance of providing support and accommodation to affected employees, while balancing the needs of employers and the broader workforce. The FWC made several minor amendments to the model term, including clarifying the eligibility criteria and the process for requesting leave, and providing additional information and guidance for employers and employees.

The FWC also published a background document and information notes to support the review and to provide guidance to employers and employees on the family and domestic violence leave model term. The FWC emphasised the importance of a proactive and preventative approach to addressing family and domestic violence in the workplace, and encouraged employers to develop and implement effective policies and procedures to support affected employees. The FWC noted that family and domestic violence was a serious and pervasive issue that required ongoing attention and action from all stakeholders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established