Fair Work Act 2009
s.156 – 4 yearly review of modern awards

4 yearly review - Family & Domestic Violence Leave Clause and Family Friendly Work Arrangements

[1] A Mention was held in relation to the Family & Domestic Violence Leave and Family Friendly Work Arrangements matters on 21 July 2017. A transcript of those proceedings is available on the Commission’s website at Transcript – 21 July 2017.

[2] After the Mention we issued a Statement (the 24 July Statement). The 24 July Statement sought submissions in relation to a number of issues and submissions were received from the following parties:

(i) National Road Transport Association – 27 July 2017

(ii) Australian Meat Industry Council – 28 July 2017

(iii) Australian Public Service Commission – 28 July 2017

(iv) Australian Council of Trade Unions – 28 July 2017

(v) Australian Industry Group – 28 July 2017

(vi) Australian Chamber of Commerce and Industry – 28 July 2017

[3] This Statement deals with following issues in respect of the Family and Domestic Violence Leave matter:

(i) the list of materials set out at Attachment A to the 24 July Statement;

(ii) the inclusion of the Australian Government Industry Award 2016 in this matter and the review of modern enterprise awards;

(iii) a list of issues to be addressed in relation to the preliminary views;

(iv) the implementation of any outcome of the Family and Domestic Violence Leave matter in particular modern awards; and

[4] The Statement also deals with the revised directions for the Family Friendly Work Arrangements matter.

AM2015/1–Family and Domestic Violence Leave Clause

(i) The list of materials set out at Attachment A to the 24 July Statement

[5] Attachment A to the 24 July Statement set out a list of submissions and evidence filed in the Family and Domestic Violence Leave matter. Parties were asked to provide any amendments or additions to the list by close of business on Friday 28 July 2017.

[6] The ACTU submission noted that three of the documents appearing on the Commission’s website required amendment. The documents mentioned at paragraphs 6 and 8 of the ACTU’s submission have been replaced. The remaining document mentioned at paragraph 9 of the submission will be replaced when a corrected version is filed.

[7] A revised list of submissions and evidence is at Attachment A to this Statement. The submissions in relation to the constitution of the Full Bench have been removed from the final list. This document will be updated as additional material is filed in accordance with the directions for the hearing and determination of this matter. The Commission’s research area has also been asked to provide a reference list of relevant data, reports and articles. The reference list will be completed and published in due course and parties will have an opportunity to comment on that material in their reply submissions.

(ii) The Australian Government Industry Award 2016 and the review of modern enterprise awards

[8] In correspondence dated 19 July 2017, the CPSU raised the question of whether the Australian Government Industry Award 2016 would be included in the current proceedings, given that it was made after the commencement of the claim. At the 21 July 2017 Mention, the Commission suggested that the CPSU have discussions with the ACTU and the APSC about how the review of that award would proceed and whether the ACTU intended for the claim to include all modern awards 1.

[9] The ACTU submit that there is no sound reason to exclude the Australian Government Industry Award from the proceedings, nor is there any basis upon which to require a party to mount a positive case for its inclusion 2.

[10] The APSC submit that the inclusion of specific clauses for family and domestic violence leave is not necessary in the Australian Government Industry Award, but that if these proceedings are intended to apply to all industry awards 3 then the award should be included.

[11] We confirm that the Australian Government Industry Award will be considered as part of the ACTU application and any outcome in this matter may apply to the award. Accordingly, parties with an interest in that award are invited to make submissions in the proceedings.

[12] The inclusion of any model term(s) arising from this matter will also be considered during the review of the remaining enterprise and State reference public sector modern awards. The review of those instruments will occur after the current technical and drafting processes for the Group 1 to 4 awards are substantially complete (see [2014] FWCFB 5537 at [16]–[18]).

(iii) List of issues to be addressed

[13] The 24 July Statement confirmed that there had been general agreement at the Mention that it would be of assistance to the parties and the Commission if some guidance was provided about the issues to be addressed in any submissions filed in respect of the preliminary views expressed by Deputy President Gooley and Commissioner Spencer in their decision of 3 July 2017 (see [3] of the 24 July Statement). The Statement set out some examples of the issues which may be addressed.

[14] The submissions filed addressed the list of issues. A consolidated list of issues, taking into account each of the submissions, is set out at Attachment B to this Statement.

[15] As noted in the 24 July 2017 Statement and at the Mention, the purpose of the list of issues is to provide guidance to the parties as to the matters to be addressed in their written submissions. However, it is important to note that a party’s submissions are not confined to the issues identified.

(iv) Award implementation

[16] The APSC and NatRoad both made submissions in relation to certain award and industry-specific matters. As we have mentioned, the APSC submit that it is not necessary to include specific clauses in respect of family and domestic violence leave in the Australian Government Industry Award. NatRoad submits that consideration should be given to an industry specific approach in the modern awards in which it has an interest.

[17] In the event that the Full Bench confirms the preliminary views in respect of unpaid leave and access to personal/carer’s leave for the purpose of taking family and domestic violence leave, the likely outcome will be a model term.

[18] If any party wishes to contend that such a model term should not be inserted into a particular award or that a tailored industry specific approach should be adopted, then they should set out their position in accordance with the Directions set out at Attachment C to this Statement. At this stage such a position need only be identified in summary terms, by reference to particular modern awards. Any awards so identified will be the subject of further proceedings after the resolution of a model term.

[19] To be clear, if a model term(s) is determined as part of these proceedings and we are satisfied that such a term is necessary to achieve the modern award objective then it will be inserted into each modern award except those modern awards which a party has indicated a preference for a different approach, in accordance with the process set out at paragraph [18] above.

AM2015/2–Family Friendly Work Arrangements

[20] Amended Directions were issued by former Vice President Watson on 22 December 2016.

[21] Ai Group sought an extension of time to file submissions and evidence in reply until 6 October 2017. Ai Group also proposed that paragraph 4 of the Amended Directions be amended so as to require submissions and evidence in reply by 27 October 2017 and that the hearing dates in October be vacated.

[22] The Ai Group’s extension request is granted and the Directions of former Vice President Watson dated 22 December 2016 are vacated. Amended directions are at Attachment D to this Statement.

PRESIDENT

Attachment A

AM2015/1–Family and Domestic Violence Leave materials filed to date

1. Decisions, Statements and Transcripts

2. Submissions and correspondence

ATTACHMENT B

AM2015/1 Family and Domestic Violence Leave

List of Issues

A. Unpaid Domestic Violence Leave

1. Should there be an entitlement to access unpaid domestic violence leave in Modern Awards?

2. If there is to be an entitlement to unpaid domestic violence leave in Modern Awards, then:

2.1 What is the extent of the entitlement to unpaid domestic violence leave (i.e. quantum)?

2.2 The circumstances in which the leave entitlement arises, including:

(a) the definition of ‘family and domestic violence’ for the purposes of the clause;

(b) the circumstances in which leave may be accessed (eg attending an appointment related to the violence); and

(c) who may access the entitlement

2.3 Accrual issues, in particular whether the leave entitlement is available in full at the start of the year or accrues.

2.4 How would an employee access the entitlement (notice and evidentiary requirements)?

2.5 The availability of leave for part-time and casual employees.

2.6 The confidentiality of information provided by employees concerning their experience of family and domestic violence.

2.7 Whether taking unpaid family and domestic violence leave counts towards continuity of service.

2.8 Relationship/interaction with other forms of leave.

B. Extension of the NES entitlement to personal/carers leave to domestic violence leave

1. Does the Full Bench have jurisdiction to extend the NES entitlement to personal/carers leave to incorporate domestic violence leave?

2. If so, should the NES entitlement to personal/carers leave be extended to incorporate domestic violence leave?

3. If the NES entitlement to personal/carers leave is to be extended to incorporate domestic violence leave, then:

3.1 The circumstances in which the NES entitlement to personal/carers leave can be accessed for the purposes of domestic violence leave? This issue requires a consideration of definitional issues regarding domestic violence for the purposes of the clause, the purposes for which the leave could be accessed and who can access the entitlement.

3.2 Should there be a cap on the amount of personal/carer’s leave that can be taken for family and domestic violence leave purposes?

3.3 The issues set out at 2.3 to 2.8 above.

ATTACHMENT C

DIRECTIONS
Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Preamble

These directions concern the further proceedings in respect of the preliminary views expressed by the majority (Deputy President Gooley and Commissioner Spencer) ([2017] FWCFB 3494 at [6]) that:

(i) All employees should have access to unpaid family and domestic violence leave.

(ii) Employees should be able to access their NES entitlement to personal/carer’s leave for the purpose of taking family and domestic violence leave.

Directions

1. All interested parties shall file comprehensive written submissions and any further witness statements or documentary evidence on which the party seeks to rely by 4.00 pm on Friday 1 September 2017.

2. On or before 4.00 pm on Friday 29 September 2017, interested parties are to file comprehensive written submissions in reply and any witness statements or documentary evidence in reply.

3. All submissions filed should address the issues set out in Attachment B to the 2 August 2017 Statement. Submissions are not limited to the issues identified in Attachment B.

4. The matter will be listed for Conference before me on 11 and 13 October 2017 in Melbourne.

5. The matter will be listed for oral Hearing on 19 and 20 October 2017 in Sydney.

6. All material should be sent in a Word document to amod@fwc.gov.au.

7. Copies of any submissions filed in response to these directions will be published on the AM2015/1—Family and domestic violence clause page of the Commission’s website.
8. Liberty to apply

PRESIDENT

ATTACHMENT D

AMENDED DIRECTIONS
Fair Work Act 2009
s.156 - 4 yearly review of modern awards

The directions issued on 22 December 2016 are vacated and the following directions are made:

1. Any party opposing the ACTU’s claim shall file comprehensive written submissions and any witness statements or documentary material on which the party seeks to rely, by 4.00 pm on Friday 6 October 2017.

2. The ACTU and any other interested party supporting the ACTU’s claim shall file any reply evidence written submissions and evidence in reply by 4.00 pm on Friday 3 November 2017.

3. The matter will be listed for a directions hearing on Wednesday 8 November 2017 for the purpose of scheduling the evidence. At that hearing, all parties intending to participate in the hearing must be in a position to inform the Commission of the witnesses required for cross-examination, and an estimate of the length of time required for cross-examination.

4. The matter will be listed for hearing on 12-14 December 2017 and 18-22 December 2017, inclusive.

5. Liberty to apply.

PRESIDENT

 1   21 July 2017 Transcript PN 279-293

 2   ACTU submission at [17]

 3   APSC submission at [5]-[7]

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