| [2022] FWCFB 26 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
s.156—4 yearly review of modern awards
Family and domestic violence leave review 2021
(AM2021/55)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 9 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 – provisional view.
[1] As part of the 4 yearly review of modern awards, we issued a decision in March 2018 1 confirming that all employees should have access to unpaid leave to deal with family and domestic violence. We finalised a model term giving effect to that decision on 6 July 2018.2
[2] On 30 July 2018, we varied 123 modern awards 3 to include the model term. The variations took effect from 1 August 2018.
[3] In December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (the Amendment Act) amended the Fair Work Act 2009 (the FW Act) to include an entitlement to unpaid family and domestic violence leave (the NES entitlement). The Explanatory Memorandum 4 states:
‘The entitlement in the Bill to unpaid family and domestic violence leave is consistent with the new modern award entitlement that the Commission inserted into all modern industry and occupation awards. After broad consultation, the Commission finalised the wording of the Model Clause to be inserted into the modern awards on 6 July 2018.’ 5
[4] In a statement issued on 11 February 2019, 6 we said that it seems that ‘the model term and the effect of the NES entitlement are substantially the same’.7 We formed the provisional view that the model award term should be deleted in the exposure drafts produced as part of the 4 yearly review and replaced with a reference to the NES entitlement but noted that:
‘[A]s the model term is a new entitlement which has only appeared in modern awards since 1 August 2018, we have also formed the provisional view that the model term should remain in modern awards until they are replaced by the exposure drafts later this year’. 8
[5] In a decision issued on 25 July 2019, 9 we confirmed the provisional view that the model term should be deleted from the exposure drafts and replaced with a reference to the NES entitlement, with the model term remaining in modern awards until they are replaced by the exposure drafts. The reference to the NES entitlement was also expanded by the addition of 2 notes, to read as follows:
‘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.’
[6] The unpaid family and domestic violence leave provisions have now been in place for a number of years. There are 5 modern awards that form part of the plain language review of modern awards which have not yet been finalised and accordingly, still contain the model term. The relevant awards are as follows:
• 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 Industry Award 2010
[7] The finalisation of the removal of the model terms from these 5 awards has been referred from the Plain Language Full Bench (AM2016/15) to this Full Bench (AM2021/55) to be dealt with as part of the Family and domestic violence leave review 2021.
[8] It is our provisional view that the model term should be deleted in the above 5 modern awards and replaced with a reference to the NES entitlement as set out at paragraph [5] above.
[9] Draft determinations giving effect to the provisional view will be published with this statement.
[10] Any party who objects to the provisional view expressed above should file a submission outlining the reasons for their objection by 4pm on 25 March 2022. Submissions should be sent to amod@fwc.gov.au and will be published on the Commission’s website.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR739161>
4 Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, Explanatory Memorandum.
5 Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, Explanatory Memorandum, p.3.
7 [2019] FWCFB 767 at para [6].
9 [2019] FWCFB 5144 at para [13].