[2017] FWCFB 1133


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Family & Domestic Violence Leave Clause



4 yearly review of modern awards – common issue – Family and Domestic Violence Leave Clause.

Decision of Vice President Watson


Introduction and Summary

[1] On 17 March 2014 the President issued a statement in relation to the four yearly review of all modern awards required by s.156 of the Fair Work Act 2009 (the Act). As part of this review, interested parties were invited to identify ‘common issues’, being those that affect most or all modern awards and are capable of being dealt with efficiently at once, rather than on an award-by-award basis.

[2] At a conference convened on 29 September 2014 the Australian Council of Trade Unions (ACTU) identified the inclusion of “a domestic violence clause that relates to leave” in the majority or all of the modern awards as an issue it sought to pursue.

[3] On 28 October 2014 the ACTU filed with the Commission its outline of claim in relation to a family and domestic violence leave clause. The outline also involved a related claim regarding the right of a worker to request a change in working arrangements. At the time of this decision, this element of the claim remains at the consideration of a separately constituted Full Bench.

[4] On 13 February 2015 the ACTU filed its draft family and domestic violence leave clause for inclusion in all modern awards. On 15 June 2015 it filed an amended draft in response to jurisdictional objections made by a number of employer parties. On 22 October 2015 a Full Bench of this Commission issued a decision 1 declining to strike out further elements of the ACTU’s amended claim for an alleged lack of legal foundation. This bench was constituted shortly thereafter to determine the merits of the application. I made directions for filing of material by parties in support of the claim and by those opposed, with an opportunity for the ACTU to file submissions in reply. Following the filing of employer submissions in opposition to the claim an amended claim was filed by the ACTU on 5 October 2016 in its submissions in reply. The draft clause is set out at paragraph 15 below.

[5] The ACTU, the Australian Chamber of Commerce & Industry (ACCI), the Australian Industry Group (Ai Group) and other interested parties were directed to file comprehensive written submissions and other material between June and September 2016. On 27 October 2016 I conducted a directions hearing for the scheduling of evidence to be heard. The substantial hearing of evidence in this matter was listed in Melbourne for 14 – 18 November 2016. The hearing of final oral submissions was listed for 1 – 2 December 2016 and the matter was completed on those days.

[6] At the hearing of this matter, Ms K Burke of counsel appeared with Ms S Ismail on behalf of the ACTU. Mr N Ward of counsel appeared with Mr J Arndt on behalf of ACCI. Mr B Ferguson of counsel appeared with Ms R Bhatt for Ai Group. Ms M Richards SC, Crown Counsel, appeared with Ms L McNeil on behalf of the State of Victoria. Mr G Johnston appeared on behalf of the Australian Meat Industry Council.

[7] The test for assessing the claim is well established. It essentially involves a broad discretion and the application of ss.156, 134 and 134 of the Act. The ultimate question is whether the insertion of family and domestic violence leave is necessary to achieve the objective of a fair and relevant safety net of terms and conditions. The consideration is required to take account of relevant factors in s.134.

[8] A consideration of context is important to this assessment. The context includes the current make-up of the safety net. Leave entitlements are established by the legislature and are provided on a standard uniform basis to all national system employees in the National Employment Standards (the NES) in the Act. Awards refer to those standards and contain limited additional machinery provisions. The Commission has consistently avoided supplementation of the NES leave standards in awards and has declined to insert additional leave entitlements, including in relation to leave of the nature now proposed. The new form of leave is intended to be available in circumstances where personal/carer’s leave or annual leave are currently available. It also seeks to extend the circumstances for taking leave beyond the circumstances of these forms of leave and to make the new form of leave available to a broader class of employees. To that extent the ACTU seeks a departure from the NES and the previous approach of the Commission.

[9] Domestic violence is a serious and pervasive social problem. It affects various aspects of contemporary Australian society including community safety, policing, law enforcement, relationships, families and workplaces. Its incidence and effects have been comprehensively studied. It is broadly accepted that the problem requires a whole of community response and there can be no single solution to the problems it creates.

[10] In my view any responsible employer should be aware of the potential for its employees to experience domestic violence and be open to assisting them deal with the problems. The best examples of an approach to the problem appear to be when employees feel they can be open with their manager, and in a cooperative and collaborative manner, develop solutions to assist the employee deal with the issues while remaining in productive employment. Such an approach is in the best interests of affected employees and employers.

[11] As explained in this decision the ACTU claim is of a different nature. It seeks to introduce a form of leave that can be taken without prior approval, and is available in a broad and somewhat uncertain range of circumstances. In my view this approach to the problem of domestic violence runs the risk of undermining the level of trust at the workplace and causing significant uncertainty and cost for employers.

[12] Australia has a relatively high safety net of terms and conditions. Family and domestic violence leave is not a feature of the safety net in other western economies. In all of the circumstances I have concluded that the ACTU claim is not necessary to achieve a fair and relevant minimum safety net of terms and conditions of employment. The claim should be rejected.

[13] Consistent with recommendations of a Royal Commission, the Victorian Government has sought to raise the issue of domestic violence leave being addressed by the Council of Australian Governments (COAG) and considered to be part of the NES. Given the need for a whole of community response to domestic violence there is much to commend in such an approach.

[14] These matters are explained more fully in this decision.

The Claim

[15] As noted above, the ACTU amended its claim in the course of filing its submissions in reply to submissions made by employers in relation to its original claim. The amended claim is to insert a clause into every modern award in the following terms:


[16] Evidence was given by a number of persons. A brief summary of that evidence follows.

[17] Professor Cathy Humphreys. Professor Humphreys is a Professor of Social Work at the University of Melbourne, and is an expert in research, policy and practice in the area of family and domestic violence. At the request of the ACTU, Professor Humphreys authored a report providing her opinion on the following:2

[18] Professor Humphreys’ report concluded that while women are “most in danger of losing their employment when they are experiencing domestic or family violence … employment may be their greatest source of security and recovery in relation to the violence they face.”3 She stated that the pathway out of domestic and family violence requires access to health, housing, financial, justice and child protection support, and that an entitlement for leave in order to secure the relevant services is an important step.

[19] Professor Humphreys concluded that “the workplace is potentially an important arena in which to counter domestic and family violence”4 and that an entitlement to leave would permit workplaces to play a greater role in providing solutions for sufferers of family and domestic violence.

[20] Dr Peta Cox. Dr Peta Cox is a Senior Research Officer for the Australian National Research Organisation for Women’s Safety (ANROWS). Dr Cox’s evidence was based on an ANROWS publication analysing the Personal Safety Survey 2012 (PSS), a study administered by the Australian Bureau of Statistics which examined interpersonal violence in Australia. The study was completed by 17,000 people. Dr Cox’s analysis related mostly to women. 5 Dr Cox’s report considered the different ways in which men and women experience violence such as the gender of the perpetrator, the location that the violence occurred (at home or in public) and whether the perpetrator was known to the victim.

[21] The survey found that 1 in 4 women and 1 in 12 men in Australia had experienced violence by an intimate partner since the age of 15. 6 In the 12 months prior to the 2012 PSS, 1 in 50 women and less than 1 in 100 men experienced violence by an intimate partner. 62% of those women were employed at the time of the violence. This is 2.3% of all women employed. Dr Cox’s report also examined the experience of women who are victims of family and domestic violence including their labour force participation, education and demographics. The report also considered the results of the violence including reporting to police, attendance at court, time absent from work and psychological impacts.

[22] Dr Michael Flood. Dr Flood is an Associate Professor in Sociology and a Research Fellow at the University of Wollongong. He was engaged by the ACTU to address three specific questions. 7 Simply put, those questions were:

[23] The primary drivers of violence against women identified by Dr Flood are gender inequalities, however, he also identified a number of contributing factors. These factors can be divided into two categories. First, factors associated with the practice of violence in general (such as childhood victimisation, high levels of public and intra-community violence, media representations normalising violence, the impact of natural disasters, civil conflict and war). Secondly, factors which compound gender inequalities and weaken social norms (such as drug and alcohol use, poverty, social isolation and rapid social and economic change). 8 Dr Flood also gave evidence that “family violence is overwhelmingly a crime against women”.9

[24] Dr Natasha Cortis. Dr Cortis is a Research Fellow at the Social Policy Research Centre at the University of New South Wales. Dr Cortis has led a research project about women’s economic security following violence since December 2014. Her report examines the economic dimensions of family and domestic violence including how economic matters can be a feature of violence and the financial impact on women’s economic security.

[25] Dr Cortis drew on a number of other reports and concluded that although women who are subject to violence have similar workforce participation rates to those who do not, they suffer much higher levels of financial hardship and stress. Maintaining employment through periods of violence and separation from a violent partner provides a way to reduce the financial impacts and improve economic independence. 10

[26] Dr Martin O’Brien. Dr O’Brien is a senior lecturer in economics in the School of Accounting and Economics at the University of Wollongong and was invited to provide an expert opinion on the methodology adopted by ACCI to examine the direct cost of ACTU’s claim addressing:

[27] Dr O’Brien concluded that many facets of the formula used by ACCI to estimate the direct cost per year of the ACTU’s claim are adequate. 12 However, Dr O’Brien identified fundamental weaknesses within the methodology which in turn affect the accuracy, usefulness and validity of the direct cost estimates. These defects included the failure to take into account part-time work,13 the level of assumed access to the leave which is not supported by publicly available data,14 and the assumption that all employees who experience family violence will need to take leave.15

[28] Dr O’Brien’s report presents an alternative cost estimate using the same basic formula as used by ACCI but using different, publicly available data. The total cost of the ACTU’s claim as estimated by Dr O’Brien is $11.9 million per annum, which is 5.8% of the estimate provided by ACCI. 16

[29] Jessica Stott. Ms Stott is employed as a women’s support worker at the Women’s Information Referral Exchange (WIRE). Ms Stott provided examples of situations that clients have discussed with her to assist in the understanding of the sort of workplace issues that arise for women who consult WIRE.

[30] Examples included a woman who had been subject to verbal and emotional abuse by her husband and who worked for the same employer as her husband. In the example, the woman had approached her employer with safety concerns which resulted in her dismissal “for her own safety”. 17 This in turn resulted in financial hardship, isolation and housing insecurity.18

[31] Another example described an employer who was supportive of a woman who suffered physical injuries from domestic violence, offering time off work and other support. 19 The woman stated that this was the best support she had during her experience and enabled her to keep her job.20

[32] Jocelyn Bignold. Ms Bignold is the CEO of McAuley Community Services for Women (MCSW). Ms Bignold stated that supporting women experiencing family violence in relation to their employment needs has emerged as a priority for MCSW. 21

[33] Ms Bignold detailed the ways in which family violence can affect the workplace, including attendance at work, abusive behaviours occurring whilst the woman is at work and the stress caused by the violence affecting the woman at work. Ms Bignold stated that these issues contribute to disrupted work histories, difficulties obtaining references leading to difficulties in finding new employment. 22 Women are also financially disadvantaged when required to utilise their sick, annual and long service leave to manage such situations. Ms Bignold stated that many women do not feel confident enough to ask their employers for flexible working arrangements, including time off work, and see resignation as their only option.23 This can cause unemployment or dependence on welfare. In some instances this results in women returning to situations of violence in order to maintain housing and financial security. Ms Bignold stated that paid leave would assist women to manage multiple financial impacts and help them retain their job.

[34] Ms Bignold stated that securing long-term employment is critical to reducing incidences of violence against women and is the key pathway to escaping violent relationships. Sustained employment provides financial security, independence, social networks and increased self-esteem. The MCSW had an employment and employer education program, McAuley Works, to help their clients secure jobs and provide access to training. The program was discontinued as of June 2015 due to insufficient funding. Outcomes measured at the time of closure included 45 women no longer relying on Centrelink payments, leading to an estimated saving of $1 million for the Australian tax-payer. 24 Ms Bignold concluded her statement by expressing support for family and domestic violence leave as an important way for victims to maintain secure employment.

[35] Sandra Dann. Ms Dann is the Director of the Working Women’s Centre SA Inc (WWC). In her evidence, Ms Dann identified the types of workplace impacts that women indicate when they are in an abusive relationship including but not limited to repeated lateness for work, personal calls whilst at work, a family member coming to the workplace and causing trouble and taking too much personal leave. 25

[36] Ms Dann identified instances where women are denied further opportunities at work, bullied out of their position or terminated after they have revealed to their employer that they have or are experiencing domestic violence. 26 Ms Dann states that where industrial instruments mention family and domestic violence, there is at least an expectation that the violence and all of its implications are considered. Ms Dann states that there is no readily available course of action for clients who were discriminated against because of their experience of domestic violence.27

[37] Ms Dann stated that women who manage domestic violence and abuse for long periods often have very little or no remaining leave to access. Ms Dann stated that the WWC support the provision of paid leave for workers experiencing family and domestic violence. 28 According to Ms Dann, the capacity of women to access specialist leave would alleviate one significant stress on women. Further, she contended that paid leave clauses signal to workplaces that there is a need to think more broadly about associated safety and risks.

[38] Karen Willis OAM. Ms Willis is the Executive Officer of Rape & Domestic Violence Services Australia. Ms Willis gave evidence that the impact of family and domestic violence is trauma to the victim, and that recovery from trauma is staged process with implications for employees at each stage. 29

[39] Ms Willis’ evidence was that family and domestic violence can impact upon a person’s working life in a number of ways. Victims may be increasingly absent from work and exhibit performance issues, leading to lost productivity. This was considered a result of trauma and illness experienced as a result of the violence. 30 Victims may be forced, by an offender, to resign from their job and may have efforts to undertake study and training sabotaged.31 Victims may also require time off work for the purpose of attending or preparing for court proceedings32 or to leave an abusive relationship and establish safety.33

[40] Ms Willis gave evidence that one of the biggest advantages for a person who is experiencing or has experienced family or domestic violence is to have an independent income. She stated, “the income gives them the capacity to re-establish a life for them and their children in a much shorter time frame than would otherwise be the case” and that the workplace can be an important part of the victim’s support network when experiencing this family and domestic violence. 34

[41] Fiona McCormack. Ms McCormack is the CEO of Domestic Violence Victoria (DV Vic). Ms McCormack discussed the highly complex “family violence system” which involves a range of sectors and agencies including the police, the legal, housing, and income support systems, child protection and corrections, as well as specialist family violence services. She stated, “navigating the system is extremely time consuming and demanding, at worst, women and children can fall through the gaps and their safety is put at risk”. 35 Ms McCormack gave evidence that where a formalised leave arrangement exists, women experiencing family violence have one less significant stress in their lives, being the fear of losing their job.36

[42] Ms McCormack’s evidence suggested that when women first raise concerns and are met by an uninformed response, they can be reluctant to seek support again. This significantly increases the risk of harm. In the context of employment, Ms McCormack stated that it is crucial for women to have access to adequate leave to ensure that they are able to access appropriate services while remaining in stable employment. 37

[43] Ms McCormack also said that it is critical for women to feel safe in disclosing family violence and that when they do, they know that their disclosure will be kept confidential. 38

[44] Bernadette Pasco. Ms Pasco is the Manager of Training, Sector Development and Special Projects at the Financial and Consumer Rights Council, the peak and professional association for financial counsellors in Victoria. 39 Ms Pasco gave evidence that victims of family violence, including financial abuse, are frequently seen by financial counsellors.40

[45] Ms Pasco’s evidence went to the economic and financial impact of family violence as both a manifestation of family violence and a hardship encountered after a victim has left an abusive relationship. She gave evidence of the way that family violence can take the form of economic abuse, and how it can continue even after the relationship has ended. 41 She stated that it can also be used as a way of maintaining control when a person attempts to leave the relationship.42 Ms Pasco gave evidence that financial counselling can assist victims of family violence negotiate with creditors and debt collectors, access formal hardship schemes, and explaining and assisting with debt options.43

[46] Samantha Parker. Ms Parker is an advocacy worker at the Western Sydney Women’s Domestic Violence Court Advocacy Service, in relation to Apprehended Domestic Violence Orders (ADVOs). She stated that while ADVOs can help to protect women from domestic violence, obtaining an ADVO usually requires women to attend court (often on multiple occasions) which can require them to take time off work. 44 Ms Parker described the process undertaken to obtain an ADVO,45 and stated that non-attendance by the women the order is sought to protect can be disadvantageous. She also estimated that the process can take at least one day in court where an application is not being contested by the defendant, and at least four days if the matter is being contested.46

[47] Ms Parker gave evidence that women in paid employment often express concern over their need to absent themselves from work in order to attend court proceedings, particularly if the proceedings require their attendance on multiple days. She stated that women in this situation may have already taken leave immediately prior to this for the purposes of seeking alternative accommodation, medical appointments, and income support. Ms Parker’s evidence was that paid employment provides women who are the victims of domestic violence with the means to achieve security for their family, and that as a result, they are often reluctant to take further leave. 47

[48] Marilyn Beaumont. Ms Beaumont is the chairperson of the Australian Women Health Networks (AWHN) National Board and made her statement on behalf of the AWHN. The AWHN is a member-based organisation, with a diverse range of members across all states and territories with an interest in women’s health and wellbeing. 48 Ms Beaumont acknowledged that domestic violence is not always physical violence, and that it may also encompass emotional and economic abuse.49

[49] Ms Beaumont gave evidence of both the physical and mental effects of domestic violence. She cited her experience as a nurse in hospital emergency departments, 50 as a psychiatric nurse, and her work in the areas of homelessness services and women’s health.51 Ms Beaumont gave specific evidence about a pilot project she worked on with Linfox to promote gender equality and non-violent norms in a male dominated workforce.52 The pilot was expanded and included training to prevent violence and to support those experiencing domestic violence. The program, now called “Take a Stand” is being implemented in workplaces across Australia.53

[50] Ms Beaumont also gave her opinion about the importance of paid family and domestic violence leave. Her reasons for this were two-fold. First, women are both disproportionately affected by domestic violence and overwhelmingly the primary carers of children or sick or elderly family members. Women tend to use personal/carer’s leave for these purposes and according to Ms Beaumont, it is unfair that they should carry the greater burden of further time away from work. Secondly, access to family and domestic violence leave would make it more likely that organisations will develop and implement workplace policies and capacity to provide support. 54 Ms Beaumont concluded that for victims of domestic violence, maintaining employment in a supportive workplace is an important contributor to women’s economic security, health and wellbeing.55

[51] Emma Smallwood. Ms Smallwood is a senior lawyer and family violence program manager, currently employed by Legal Aid Victoria. She was previously employed by the Women’s Legal Service Victoria (WLSV) and gave evidence on their behalf. Ms Smallwood is the author of a research report published by WLSV entitled Stepping Stones: Legal Barriers to Economic Equality After Family Violence (the Stepping Stones Report). The report followed a project investigating economic abuse, financial impacts of family violence and the different legal and financial barriers encountered by women who are victims of domestic violence. 56 Some of the recommendations set out in the Stepping Stones Report were adopted by the Victorian Royal Commission into Family Violence.57

[52] Ms Smallwood stated that she carried out most of the interviews that formed the basis for the Stepping Stones Report. A number of common themes emerged from the interviews including the financial penalty and hardship endured by women experiencing family violence, the importance of obtaining financial independence, the difficult and lengthy nature of interactions with different legal systems and the fact that these interactions becoming more difficult because of deliberate actions of the perpetrator.

[53] The statement of Ms Smallwood included excerpts from the interviews including one with “Nicole”, who lost her job as a result of having to take time off after experiencing family violence and was left facing homelessness with considerable debt. 58 Ms Smallwood also examined the limitations of the legal and financial systems currently in place which require women to bear the majority of the burden in terms of protecting themselves and their children. She expressed the opinion that it is essential for women to have work arrangements that allow them to take action to protect themselves without further financial penalty. Access to paid leave would result in benefits to victims of family violence and prevent further loss of financial security.59

[54] Julie Kun. Ms Kun is the CEO of Women’s Information and Referral Exchange (WIRE), a women’s support organisation, having previously worked for the Australian Services Union (ASU). In her evidence, Ms Kun provided an overview of the services provided by WIRE, such as the Support Line and Information Centre. 60

[55] Ms Kun gave evidence concerning financial abuse as a manifestation and a result of family violence. She stated that it is different to other forms of family violence in that it can continue long after the relationship is over, and can result in women experiencing dire poverty. 61 She outlined three specific timeframes during which financial abuse commonly occurs:

[56] Ms Kun’s evidence was that women do not typically ask for time off work to deal with family violence related situations in workplaces that do not provide for family violence leave. 63 She stated that where employers provided support such as family violence leave, victims of family violence are given a greater number of avenues from which to seek assistance, and help to end the abuse they experience.64

[57] Michele O’Neil. Ms O’Neil is the elected national secretary of the Textile, Clothing and Footwear Union of Australia. She gave evidence about the union’s bargaining strategy which has included a strategy to incorporate paid family and domestic violence leave provisions in TCF industry enterprise agreements. 65 As a result of this strategy, 4 of the 57 enterprise agreements covering TCF workers now include domestic violence leave clauses.66 This entitlement to paid leave ranges from 2 days to 10 days.67

[58] Ms O’Neil’s evidence also examined enterprise agreement negotiations that had not resulted in obtaining an entitlement to paid domestic violence leave. Ms O’Neil stated that the reasons given by employers for rejecting this type of clause included the absence of domestic violence as an issue in their workplaces, employers providing employees leave without the need for a dedicated clause, and a perceived inadequate utilisation of the leave to justify the need for a dedicated family and domestic violence leave clause. 68

[59] Finally, Ms O’Neil’s statement considered the nature of the TCF industry, which predominately consists of women. A significant number of these women had non-English speaking backgrounds. In this context, Ms O’Neil stated that the loss of a day’s pay or more can be significant, and financial pressure is compounded when a woman is required to have several absences due to the experience of family or domestic violence. 69 Ms O’Neil also noted the importance of the proposed confidentiality requirement in her industry.70

[60] Sunil Kemppi. Mr Kemppi is a Senior Industrial Officer of the Community and Public Sector Union. He gave evidence about the current round of Australian Public Service (APS) bargaining affecting at least 99 agencies. 71 Members across the APS have endorsed bargaining claims which include provisions for employees affected by family or domestic violence in all agreements.72 The claim includes 20 paid days leave, access to flexible work arrangements and availability of appropriate support networks.73 Personal/carer’s leave does not cover circumstances such as court appearances or appointments related to family or domestic violence.74

[61] Mr Kemppi stated that enterprise bargaining in his industry has been largely informed by Australian Government workplace bargaining policies. During bargaining, representatives of APS agencies have regularly raised these policies as barriers for improvement and preservation of current conditions. 75 Mr Kemppi gave examples of several government agencies that would not include family and domestic violence leave in proposed agreements as they do not fall within these bargaining policies.76

[62] According to Mr Kemppi, an industrial strategy is required to enable victims of family or domestic violence to obtain the help they need without risking their employment. 77 He gave evidence that a dedicated clause would provide a relevant safety net and allow bargaining to proceed on the basis that family violence was a basic entitlement rather than an enhancement to existing conditions.78

[63] Michelle Jackson. Ms Jackson is employed as a Branch Co-ordinator by the Victorian and Tasmanian Authorities and Services Branch of the ASU. Her role involves the negotiation of enterprise agreements. Ms Jackson gave evidence that approximately 2000 of the ASU’s members in the social and community services industry are not covered by an enterprise agreement, instead deriving the terms and conditions of their employment from the relevant modern award. 79

[64] Ms Jackson stated that while some of the enterprise agreements covering ASU members include provisions for family and domestic violence leave, bargaining outcomes are inconsistent. She provided the example of different enterprise agreements covering different departments within a single employer, where the bargaining power and priorities of the members in each department affect the entitlement to family and domestic violence leave enjoyed by the employees. 80 It was suggested that in male-dominated industries, women in the workplace are not always able to gain the support of their male colleagues in the pursuit of these sorts of provisions.81 She further pointed out that there is no minimum standard in modern awards against which to apply the better off overall test contained in the Act in relation to family or domestic violence.82

[65] Ms Jackson pointed to the Surf Coast Shire Council Enterprise Agreement No. 7 2010-2013 as an example of an enterprise agreement that includes best practice entitlements, such as confidentiality obligations, risk assessment training, flexible working arrangements and the ability to access carer’s leave in order to accompany a victim of family violence to court. 83 Ms Jackson also gave evidence that in both the Surf Coast Shire Council and Greater Dandenong City Council, approximately 0.2% of staff access the enterprise agreement entitlement to domestic violence leave in any given year.84

[66] Ms Jackson provided three examples of objections raised by employers to the inclusion of paid family and domestic violence leave in enterprise agreements. These objections focused on the cost to the employer, the potential for employees to disingenuously claim access to the leave, and the need for employees to have an annual entitlement to such leave. She submitted that an award entitlement to paid family and domestic violence leave would overcome these issues. 85

[67] Brad Gandy. Mr Gandy is the Australian Workers’ Union (AWU) Western Australia Assistant Branch Secretary. He has previously worked as an organiser for the branch, and has been involved in the negotiation of enterprise agreements. Mr Gandy gave evidence concerning his attempts to introduce an entitlement to paid family violence leave into the agreement being negotiated to replace the Spotless Facility Services trading as Alliance Catering (Alcoa Sites) Enterprise Agreement 2013. He stated that despite some promising conversations with the Spotless personnel in Western Australia, the proposal was ultimately rejected by Spotless’ head office in Melbourne. This was due to Spotless’ view that family and domestic violence leave was already provided for by the NES. Mr Gandy gave evidence that his request for an explanation of how the NES already provides for this leave went unanswered by Spotless. 86

[68] Mr Gandy stated that for the employees who would be covered by the agreement being negotiated, accessing paid leave (such as annual leave) is difficult owing to the small teams in which employees work. He stated that the timing of annual leave is discretionary and is only approved with consideration of business requirements. 87

[69] Despite not succeeding in introducing family violence leave into the enterprise agreement referred to above, Mr Gandy stated his intention to attempt to introduce the same or a similar clause into other agreements. 88

[70] Mick Doleman. Mr Doleman is the executive officer of the Maritime International Federation. He has worked in the maritime industry, as either a seafarer or union official with the Maritime Union of Australia (MUA), since 1970. 89 Mr Doleman is also an ambassador of White Ribbon—a male-led organisation raising public awareness of violence against women.90 Mr Doleman stated that changing workplace culture is crucial.91 He gave evidence of his involvement with White Ribbon, and of his suggestion to the organisation that it pursue engagement in workplaces (particularly male-dominated workplaces).92

[71] Mr Doleman gave evidence about the MUA’s draft domestic violence leave clause, which is submitted in negotiations for every enterprise agreement. The clause includes 10 days of paid leave. He stated that the view of the MUA’s National Council is that it will not ratify an agreement unless it contains a domestic violence clause. 93 Mr Doleman stated that in his experience, support for a safety net clause for domestic violence has been unanimous, and that no MUA officials have reported opposition from male union members when discussing such clauses. He said that some opposition has been faced from employers who have suggested that such a clause would be misused by employees.94

[72] Debra Eckersley. Ms Eckersley is the Human Capital leader for PricewaterhouseCoopers (PwC) in Australia. Ms Eckersley’s evidence details PwC’s experience of introducing a Family and Domestic Violence and Sexual Assault policy (the Policy) in 2015. The Policy is set out at Annexure A to Ms Eckersley’s statement. Ms Eckersley stated that the experience has confirmed to PwC the importance of the provision of paid family and domestic violence leave and an accompanying confidentiality obligation. 95

[73] Ms Eckersley stated that prior to the Policy’s introduction, PwC had no formal response to domestic and family violence or sexual assault matters and that it was likely that these matters were previously dealt with in an ad hoc manner. Considerations in approving the Policy included the estimated cost of domestic and family violence to the economy and employers, PwC’s duty of care to employees to provide a safe workplace, and the impact on work attendance and performance.

[74] A confidentiality clause was included in the Policy to address concerns that the Policy may otherwise be ineffective and potential safety risks from broader disclosure. 96 Ms Eckersley suspects that before the Policy, some staff experiencing family and domestic violence or sexual assault may have not disclosed their experience and instead accessed other forms of leave or resigned.97 She considers the confidentiality clause has encouraged staff to access the Policy. Ms Eckersley considers the Policy has sent a strong message of support to employees and put in place a customised response.98

[75] Ms Eckersley’s evidence was that, while there is benefit in organisations like PwC demonstrating best practice, there needs to be a floor of minimum benefits to provide a fair minimum standard. She stated that if employers are left to develop their own policy, a universal and consistent approach to family and domestic violence will not eventuate. 99

[76] Jenni Mandel. Ms Mandel is employed by the Ai Group as a Workplace Relations Policy Advisor. In September 2016 Ms Mandel analysed and summarised information provided by the Department of Employment from the Workplace Agreement Database on enterprise agreements containing domestic violence provisions (WAD data) at the request of Ai Group. 100

[77] In particular, she analysed:

[78] Ms Mandel found there were 1,149 enterprise agreements current as at 30 June 2016 with some type of provision dealing with domestic violence (not necessarily leave provisions), equating to 7.9% of all enterprise agreements. A total of 819,805 employees were covered by enterprise agreements with some type of provision dealing with domestic violence, equating to 37.8% of all employees covered by enterprise agreements current as at 30 June 2016. Ms Mandel’s analysis also considered numbers of agreements containing a family and domestic violence leave clause by sector, state, union and industry.

[79] Ms Mandel found that 323 agreements (15%) of all enterprise agreements approved from 1 January 2016 to 30 June 2016 contain some type of provision dealing with domestic violence. Of the 323 containing such a provision, 38.4% contain paid domestic violence leave entitlements and 6.5% contain unpaid leave entitlements. 35.6% contain provisions allowing access to other forms of leave for domestic violence purposes.

[80] Ms Mandel also analysed the 124 enterprise agreements approved in the 2016 period with paid family and domestic violence leave. As was found in relation to all agreements current as at 30 June 2016 containing domestic violence leave provisions, the industries with the greatest proportion of agreements approved in the 2016 period with paid domestic violence leave were Health Care and Social Assistance (approximately 32.3%), Public Administration and Safety (approximately 13.7%) and Education and Training (13.7%). 79.8% of the enterprise agreements are in the private sector. Enterprise agreements applying in Victoria accounted for 37.9% of all agreements approved in the 2016 period containing paid family and domestic violence leave. South Australia accounted for the second highest proportion of 13.7%.

[81] In relation to the number of days of paid family and domestic violence leave provided by the agreements, Ms Mandel found that of the 124 enterprise agreements, 10.5% provide for more than 10 days’ paid leave, 18.5% provide for 10 days’ paid leave, 29.8% provide for 5–9 days’ paid leave, 20.2% provide for 1–4 days’ paid leave, and 21% provide for paid leave that varies in length.


[82] Oral or written submissions were made by the following bodies:

[83] The submissions were either in favour of or against the ACTU’s application. An understanding of the nature of those submissions can be gleaned from the summaries of submissions advanced by the ACTU, ACCI and Ai Group.

[84] ACTU. After the hearing of the evidence in the matter the ACTU submitted:

[85] In relation to the statutory test the ACTU submitted:

[86] Its conclusion was expressed as follows:

[87] ACCI. ACCI submitted:

[88] In relation to the statutory tests ACCI submitted:

[89] It concluded by submitting:

[90] Ai Group. Ai Group submitted:

[91] In relation to the statutory tests it submitted:

[92] It concluded:

The Legislative Test

[93] There is no dispute between the parties represented in the proceedings as to the test that is required to be applied to the application. The nature of the test has been summarised in various Full Bench decisions.

[94] In reviewing each award the Commission must have regard to the modern awards objective in s.134 of the Act. The modern awards objective is to “ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions”, taking into account the particular considerations identified in ss.134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 

[95] While the Commission must take into account the s.134 considerations, the relevant question is whether the modern award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions. Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.

[96] Section 138 of the Act is also relevant, it emphasises the importance of the modern awards objective in these terms:

[97] What is “necessary” in a particular case is a value judgment, taking into account the s.134 considerations, to the extent that they are relevant, having regard to the submissions and evidence directed to those considerations.

[98] Each award must be reviewed in its own right. However more than one award can be reviewed at the same time. 101 The ACTU submits that the common claim in this matter is part of the review of each of the 122 modern awards.

The Nature and Context of the Claim

[99] The proposed family and domestic violence leave clause seeks the creation of a new form of leave that is available “for the purpose of attending to activities related to the experience of being subjected to family and domestic violence.” To the extent that the activities involve the employee or a member of the employee’s household recovering from the physical or emotional effects of domestic violence, the leave is intended to be available as an alternative to personal/carer’s leave.

[100] Family and domestic violence leave is also properly viewed as a supplementation of personal/carer’s leave in three respects. First, it provides an additional quantum of personal/carer’s leave for the circumstances covered by both forms of leave. The quantum of personal/carer’s leave under the NES is 10 days per year and accumulates from year to year. The claim for family and domestic violence leave is for a further 10 days of paid leave per year (which does not accumulate from year to year) and a further two days of unpaid leave for each additional occasion of domestic violence after the paid leave entitlement is exhausted.

[101] Secondly, the claim expands on the circumstances of personal/carer’s leave. Under the NES, personal/carer’s leave is available either because the employee is not fit for work because of personal illness or personal injury, or to provide care or support for the employee’s immediate family, or a member of the employee’s household who requires support because of illness, injury or an unexpected emergency. Family and domestic violence leave is intended to be available for activities that include attending legal proceedings, counselling, appointments with medical, financial or legal professionals, relocation or making other safety arrangements.

[102] Thirdly, family and domestic violence leave is intended to be available to full time, part-time and casual employees. Casual employees are not entitled to paid personal/carer’s leave (or paid annual leave) under the NES.

[103] Other forms of leave, including annual leave, may also be available for the circumstances for which family and domestic violence leave may be taken. Under the NES, annual leave accrues progressively during each year of service and accumulates from year to year. Paid annual leave may be taken for a period agreed between an employer and employee.

[104] The scheme of the Act is to provide terms and conditions of employment from the NES, modern awards, enterprise agreements and workplace determinations. The NES apply to all national system employees and cannot be displaced. Only one of the other types of instrument can apply to an employee at a particular time. Of the ten NES entitlements, five relate to various forms of leave. These are parental leave, annual leave, personal/carer’s leave, community service leave and long service leave.

[105] Modern awards were established by a seven member Full Bench in an intensive period from 2008 – 9. In the course of replacing many thousands of pre-existing awards with 122 modern awards, the Full Bench was required to consider the interaction between the NES and the terms of awards. The Full Bench repeatedly avoided supplementation of the NES by rejecting award provisions which provided additional entitlements to leave and other matters dealt with in the NES. For example, in relation to the Black Coal Industry Award the Full Bench said 102:

[106] In relation to the Fire Fighting Industry Award the Full Bench said 103:

[107] It subsequently said 104:

[108] In relation to the Local Government Award the Full Bench said 105:

[109] In relation to the Airport Employees Award the Full Bench said 106:

[110] The Full Bench said the following in relation to jury service leave 107:

[111] In relation to annual leave the Full Bench said 108:

[112] In relation to compassionate leave in the Aluminium Industry the Full Bench said 109:

[113] A similar approach was adopted in relation to the Hair and Beauty Industry Award. The Full Bench said 110:

[114] The conscious decision of the Commission not to supplement the NES resulted in awards making reference to the NES for annual leave, personal/carer’s leave, community service leave and other NES matters such as public holidays. Any further provisions are of a machinery nature and do not affect the underlying NES entitlement. The approach ensured that entitlements created by the NES are not complicated by supplementary award provisions consistent with the requirement in the modern awards objective that the award system is simple, easy to understand, stable and sustainable. In my view it is not appropriate to depart from that clear approach.

[115] There can be no doubt on the evidence before the Commission that family and domestic violence is a significant social issue. The Royal Commission into the matter established by the Victorian Government provides a clear indication of its pervasiveness in current Australian society. In its Final Report the Royal Commission said:

[116] Included in the Royal Commission’s recommendations are the following: 111

[117] The Council of Australian Governments (COAG) has resolved to consider this matter after this Full Bench delivers its decision.

[118] In 2013 Parliament amended the Act to expand on the circumstances in which an employee could request flexible working arrangements under s.65 of the Act. Those circumstances include where “the employee is experiencing violence from a member of the employee’s family”. The employer may only refuse such a request on reasonable business grounds. There is no evidence before us of the operation of this provision which enables us to conclude that this avenue is providing adequate assistance to employees. It is likely that informal approaches, on a case by case basis, arising from discussions at the workplace are commonplace in the case of domestic violence that affects the work of an employee.

[119] The evidence establishes that various approaches to family and domestic violence have been developed at particular workplaces. Some have detailed policies. Some provide access to leave. Leave entitlements vary and could involve paid or unpaid leave. Some of the entitlements are contained in enterprise agreements. PwC has a detailed policy that covers sexual assault victims as well as victims of family and domestic violence. Its head of Human Capital said the following in relation to the development and intent of the policy:

Modern Awards Objective Factors

[120] The overall consideration of whether family and domestic violence leave is necessary to provide a fair and relevant minimum safety net needs to be considered with the benefit of a consideration of the specific factors in s.134 of the Act. I consider them in turn.

[121] Relative living standards and the needs of the low paid. The ACTU submitted that it is reasonable to assume that a proportion of award-reliant employees who are low paid may be affected by family and domestic violence and that paid family and domestic violence leave would ensure that low-paid workers are not further disadvantaged by being required to take unpaid leave, or to jeopardise their employment, in order to meet the needs arising out of being subjected to family and domestic violence.

[122] While this may be true, victims of domestic violence could be affected severely or less severely regardless of the level of their pay. The evidence falls short of establishing that low paid workers need this form of leave – and it does not appear to be contended otherwise.

[123] The need to encourage collective bargaining. It is doubtful that granting the claim would either encourage or discourage bargaining. The evidence suggests that some unions are pursuing claims for domestic violence leave and are having mixed success. Speculating on the effect of granting the claim on bargaining dynamics does not appear to be a significant factor in this case.

[124] The need to promote social inclusion through increased workforce participation. To the extent that domestic violence disrupts employment, it may also preclude workforce participation for those affected. This factor provides some support for the notion that steps to assist victims to stay in employment should be encouraged. However, it would be an overstatement to say that domestic violence leave will materially affect workforce participation or social inclusion.

[125] The need to promote flexible work practices and the efficient and productive performance of work. The employers submit that this factor points against granting the claim because an absence from work can disrupt an operation. However, it is important to consider this matter in the context of a victim of domestic violence who needs to absent themselves for medical, legal, safety or other reasons. The best way for this to be addressed is through an open and collaborative approach between the employee and the employer. Consideration and flexibility is likely to enhance efficiency and productivity rather than an unsympathetic approach. However, taking leave pursuant to a right to do so, when other mutually acceptable approaches may be available, could adversely affect efficiency and productivity.

[126] The need to provide additional remuneration for overtime and other circumstances. It is not contended that this factor has particular relevance to family and domestic violence leave.

[127] The principle of equal remuneration for work of equal or comparable value. The ACTU contends that the higher incidence of women experiencing domestic violence means that leave entitlements that are otherwise gender neutral are not received by women on equal terms. Assuming that this factor extends to leave as well as remuneration, it involves considerable speculation as to the incidence and need for leave such as personal/carer’s leave. I do not consider that there is an appropriate basis to find that this factor has real significance to the claim for domestic violence leave.

[128] The likely impact on business, including productivity, employment costs and regulatory burden. The ACTU contends that additional costs would be reasonable, proportionate and occur against the background of the existing cost of domestic violence. It contends that by reducing future violence, the proposed clause will contribute to a reduction in productivity losses and employment costs.

[129] The actual cost of the claim cannot be accurately assessed on the material before the Commission. It is one thing to consider paid leave being granted for genuine cases of physical domestic violence necessitating absence from the workplace. However the claim extends to leave for the purposes of “attending to activities related to the experience of being subject to” “threatening or other abusive behaviour” by a member of a person’s family or household. The leave can be taken without prior approval. However, if requested by the employer, the employee must provide evidence that would satisfy a reasonable person that the leave is for the stated purpose. This test does not incorporate a notion of necessity. It does not require the employee to show that the absence was necessary at the particular time – only that it was for a specified purpose.

[130] For example, evidence of an appointment with a financial advisor would presumably satisfy a reasonable person that the leave is for a stated purpose falling within the description of “attending … appointments with a … financial … professional”. However, there does not appear to be any requirement to demonstrate that advice could only be obtained during working hours, or that obtaining financial advice necessitated an absence from work. If a right to take paid leave for such purposes is created, would employees utilise that right even though they do not need to do so in order to obtain advice?

[131] The concept of domestic violence is expressly said to include emotional abuse arising from financial conflict. It may be, for example, that both parties to a contested family law property settlement could seek paid leave to attend to family law proceedings under this wording. Or verbal abuse of members of a shared household could justify paid leave to recover from the trauma caused by a heated argument.

[132] The ACTU amended its claim after the employers’ submissions and evidence was filed in order to address concerns about the potential reach of the proposed new form of leave. Nevertheless questions as to the breadth of the right to leave continued to arise from the amended wording. Examples such as those above were raised in the proceedings. No satisfactory answers were given as to whether the entitlement was intended to be available in these circumstances. As the circumstances of the proposed entitlement are uncertain, so too is the cost. The costs could well be significant.

[133] In a large business, an occasional absence from work may not have a significant impact on the business. However in a small business, unplanned absences could have a much greater impact. It is especially important to approach new forms of paid leave which can be taken without advanced notice with care. The desirability of an open and cooperative approach is perhaps more important in small businesses. The problems arising from uncertainty as to the precise reach of the proposed entitlement are magnified in small businesses.

[134] There are further particular problems arising from the application of the proposed leave to casual employees – especially in industries with a high incidence of casual employment.

[135] The ACTU has not sought to mount its case in relation to any particular industry and has not addressed the circumstances of each industry award. Its failure to do so has created additional difficulties in assessing the impact of its claim on all industries covered by the 122 modern awards.

[136] The need to ensure a simple, easy to understand, stable and sustainable modern award system. The ambiguities associated with the circumstances when leave may be available are contended by the employers to make this factor an important consideration. Indeed it would be undesirable for a new form of leave to be made available if it has an uncertain application. This is especially so if the leave can be taken without prior approval. In my view this is a significant factor against the granting of the claim.

[137] The likely impact on employment growth, inflation and the Australian economy. The ACTU has considered this factor in conjunction with the microeconomic factor of the impact on business. Ambiguity associated with the extent to which the right to take leave can be exercised makes a precise assessment impossible. If the costs to a business can be significant, the costs to the economy can also be significant.

Is Domestic Violence Leave Necessary to Achieve the Modern Awards Objective?

[138] Family and domestic violence leave is not part of the current award safety net. Lesser entitlements for similar purposes in limited industries were removed from the award safety net during the award modernisation process in 2009. The essence of the ACTU claim is that the extent of family and domestic violence requires a whole of community response. It contends that a right to paid leave, while not of itself capable of preventing domestic violence, will help prevent financial instability that is devastating to a person’s attempt to recover from a violent relationship. The aim is to enable employees to safely escape violent relationships, prevent future violence and be part of the solution to a complex and pervasive problem. It seeks the right to take leave in a standard form in all 122 modern awards.

[139] The question the Commission must consider is whether inserting such a provision is necessary to provide a fair and relevant minimum safety net for each of the awards.

[140] There can be no doubt that family and domestic violence is widespread in Australian society. It has implications for community safety, policing, law enforcement, family and other relationships, education and workplaces. There can also be no doubt that employers should be aware of the problem and adopt approaches that assist affected employees and limit the impact of the problem on their business.

[141] There is much to commend in the approach of PwC in this regard. Through a deliberate and publicised policy, it seeks to ensure that it is aware of instances of domestic violence that affect employees and work constructively with the employee to assist the employee deal with the issue. Paid leave may or may not be part of the solution in a particular case. Such an approach is likely to maintain the positive benefits of employment for the employee and the employer. The same outcome is likely through a case by case approach by a considerate manager or small business employer. Such an approach should be a feature of any high trust working environment and be standard practice for any caring and successful manager.

[142] In my view the element of openness, and a collaborative approach to solutions, is fundamental to successfully dealing with the problem. If the underlying problems are not communicated, and only the ramifications of domestic violence are apparent, it is likely that the causes will not be understood and the responses will be more severe for the employee and the employer.

[143] The ACTU claim does not mandate an open, positive, considerate and collaborative approach and nor can a uniform award provision be expected to do so. A right to take leave without prior approval for a myriad of different purposes and with uncertain parameters may do more to undermine trust than promote it. If an employer is not aware of the underlying problem, and is not part of developing an appropriate solution to the problem, it is less likely to see the benefits of its employees taking paid leave. If employees seek to take paid leave for purposes which are regarded as having a tenuous link with actual physical violence, the entitlement may lead to a deterioration in workplace relationships. Such implications will not provide greater fairness to employees or employers.

[144] In my view the grant of a new form of leave in itself will have uncertain consequences. A better approach is to build awareness of the issue and to encourage a considerate, collaborative and flexible approach by employers and affected employees.

[145] There is little international precedent for a standard form of leave of the kind sought. The Commission has firmly rejected attempts to supplement the NES with modified forms of leave. The wisdom of that approach is emphasised when the problem being addressed requires a whole of community response. The Victorian Government has followed the recommendation of its Royal Commission by raising the matter with COAG. There is wide support for the matter being considered in that forum and such an approach obviously has much to commend it.


[146] In all of the circumstances I am not satisfied that the family and domestic violence leave claim by the ACTU is necessary to provide a fair and relevant minimum safety net of terms and conditions. It follows that the ACTU claim should be rejected. This matter has been before this Full Bench since November 2015. The evidence, submissions and hearings were comprehensively and completely dealt with by 2 December 2016. The other members of the Full Bench are not presently able to issue their decision. In accordance with ss.618 and 619(2) of the Act the decision of the majority of members of the Full Bench prevails. That majority position will be determined after the publication of this decision and the subsequent decisions of the other members of this Full Bench.



Ms K Burke of counsel with Ms S Ismail for the ACTU.

Mr N Ward with Mr J Arndt for ACCI.

Mr B Ferguson with Ms R Bhatt for Ai Group.

Ms M Richards SC, Crown Counsel, with Ms L McNeil for the State of Victoria.

Mr G Johnston for the Australian Meat Industry Council

Hearing details:



14-18 November, 1-2 December.

 1   [2015] FWCFB 5585.

2 Statement of Professor Cathy Humphreys (27 May 2016 ), annexure CH-2, p2.

3 Ibid annexure CH-3, 8.1.

4 Ibid.

 5   Expert report of Dr Peta Cox (26 May 2016), para 1.2.

 6   Ibid annexure PC-3, para 7.2.

 7   Statement of Michael Flood (6 May 2016), para 8 and MF-2.

 8   Ibid part 5.

 9   Ibid para 3.6.

 10   Dr N Cortis, Women’s economic security and domestic violence: the role of employment, employment support and employment protection (26 May 2016), para 70.

 11   Expert Report of Dr Martin O’Brien (17 October 2016), page 1.

 12   Ibid 1.5.

 13   Ibid 2.6.

 14   Ibid 2.11.

 15   Ibid 2.21.

 16   Ibid 4.11.

 17   Statement of Jessica Stott (10 November), paras 10-12.

 18   Ibid para 13.

 19   Ibid paras 22 – 23.

 20   Ibid paras 25 – 27.

 21   Statement of Jocelyn Bignold (undated), para 11.

 22   Ibid para 23.

 23   Ibid para 23.3.

 24   Ibid para 46.

 25   Statement of Sandra Dann para 20-21.

 26   Ibid paras 22, 25, 27, 29.

 27   Ibid para 30.

 28   Ibid para 40.

 29   Statement of Karen Willis OAM (undated), para 9.

 30   Ibid paras 21-23.

 31   Ibid paras 24-26.

 32   Ibid paras 27-34.

 33   Ibid paras 35-41.

 34   Ibid para 50.

 35   Statement of Fiona McCormack (undated), para 16.

 36   Ibid para 34.

 37   Ibid para 40.

 38   Ibid para 42.

 39   Statement of Bernadette Pasco (undated), para 8.

 40   Ibid para 19.

 41   Ibid paras 39, 41.

 42   Ibid para 42.

 43   Ibid para 44.

 44   Statement of Samantha Parker (undated), para 6.

 45   Ibid paras 8-15.

 46   Ibid para 16.

 47   Ibid paras 17-18.

 48   Statement of Marilyn Beaumont (undated), para 10.

 49   Ibid para 14.

 50   Ibid paras 24-26.

 51   Ibid para 27.

 52   Ibid para 31.

 53   Ibid para 35.

 54   Ibid paras 46-47.

 55   Ibid para 56.

 56  Statement of Emma Smallwood (undated), para 7.

 57   Ibid para 9.

 58   Ibid para 29 and EM-2.

 59   Ibid para 57-58.

 60   Statement of Julie Kun (undated), paras 11-20.

 61   Ibid para 21.

 62   Ibid para 37.

 63   Ibid para 47.

 64   Ibid para 52.

 65   Statement of Michele O’Neil (30 May 2016), para 23.

 66   Ibid para 26.

 67   Ibid para 28.

 68   Ibid para 32.

 69   Ibid para 39.

 70   Ibid para 44.

 71   Statement of Sunil Kemppi (undated), para 9.

 72   Ibid para 12.

 73   Ibid para 12.

 74   Ibid paras 14 – 15.

 75   Ibid para 18.

 76   Ibid paras 22-26.

 77   Ibid para 28.

 78   Ibid para 29.

 79   Statement of Michelle Jackson (undated), para 5.

 80   Ibid para 11.

 81   Ibid para 15.

 82   Ibid para 11.

 83   Ibid para 12.

 84   Ibid paras 18-19.

 85   Ibid paras 16-17.

 86   Statement of Brad Gandy (27 May 2016), paras 4-11.

 87   Ibid para 14.

 88   Ibid para 16.

 89   Statement of Mick Doleman (27 May 2016), paras 2-4.

 90   Ibid paras 5, 7.

 91   Ibid para 9.

 92   Ibid para 8.

 93   Ibid para 11.

 94   Ibid paras 12-13.

 95   Statement of Debra Maree Eckersley (20 June 2016), para 45.

 96   Ibid para 10.

 97   Ibid para 35.

 98   Ibid para 37.

 99   Ibid paras 44-45.

 100   Statement of Jenni Mandel (19 September 2016), para 5.

 101   s.156(5).

 102   [2008] AIRCFB 1000.

 103  [2009] AIRCFB 865.

 104  [2009] AIRCFB 945.

 105   Ibid.

 106   [2010] FWAFB 286.

 107   [2008] AIRCFB 1000.

 108   [2008] AIRCFB 717.

 109   [2009] AIRCFB 826.

 110   [2010] FWAFB 290.

 111   Commonwealth, Royal Commission into Family Violence, Final Report (2016), 39.

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