[2021] FWCFB 4818
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, 6 AUGUST 2021

Family and domestic violence leave review–research program–confidentiality orders–directions varied.

[1] On 15 April 2021 we issued a statement (the April Statement) commencing the 2021 review of family and domestic violence leave terms in modern awards (FDV Review). 1

[2] As set out in the April Statement, the Commission is conducting a research program to inform the FDV Review. The research program will include:

1. Literature and data review.

2. Analysis of the Workplace Agreements Database (WAD).

3. A qualitative assessment of the experience of family and domestic violence leave.

4. Survey analysis.

[3] In our statement of 12 July 2021 2 we set out further details of the literature and data review and the WAD analysis. Interested parties were invited to comment. The comments received have been passed on to the Social Work Innovation Research Living Space, which is conducting the research.3

[4] In our statement of 26 July 2021 4 we set out further details of the qualitative assessment research to be undertaken by the Monash Gender and Family Violence Prevention Centre. Interested parties were invited to comment on the proposed research by 4pm on Monday 2 August 2021. No comments were received.

[5] On 2 August 2021 the Australian Industry Group (Ai Group) wrote to the Commission requesting an extension of time for lodging responses to the draft survey. We grant the Ai Group’s request for an extension of time, the amended directions are set out below:

1. Any party wishing to comment on the draft survey is to file their comments by 4.00 pm on Friday 13 August 2021.

2. Any party seeking to vary a modern award in relation to family and domestic violence leave is to file their proposed variation, evidence and written submissions in support by 4.00pm on Friday 30 July 2021.

3. Any party opposing proposed variations to modern awards is to file their evidence and written submissions by 4.00 pm on Friday 5 November 2021.

4. Submissions and evidence in reply are to be filed by 4.00 pm on Friday 19 November 2021.

5. The matter will be listed for Mention at 9.30 am on Wednesday 24 November 2021.

6. The matter will be listed for Hearing in the week commencing 29 November 2021.

[6] The Australian Council of Trade Unions (ACTU) has filed a submission and evidence in accordance with direction 2 above. Publication of these materials is subject to resolution of confidentiality issues.

Confidentiality orders

[7] On 30 July 2021 the ACTU wrote to the Commission about confidentiality issues that arise in this matter. The ACTU does not intend to file statements by individuals who have directly experienced family and domestic violence; but a number of the ACTU’s ‘lay witness statements’ contain sensitive case studies detailing experiences of family and domestic violence. The ACTU has agreed with the Australian Chamber of Commerce and Industry and the Ai Group on the following proposed process to protect the identity and privacy of the individuals who are the subject of these case studies:

‘1. Confidentiality Orders will apply only to lay witness statements that contain sensitive case studies disclosing details of an individual’s experience of domestic and family violence. All other evidence will be dealt with in accordance with the usual Commission procedures.

2. The ACTU will prepare a redacted and unreacted version of each lay witness statement which contains sensitive case studies, with Confidentiality Orders applying to the unredacted version of the statement only. The redacted version of the statement can be published on the FWC website.

3. Confidentiality Orders will provide that the unredacted version of the witness statements will only be provided to:

a. the Commission members and their staff; and

b. a limited number of confirmed representatives of AIG, ABI, NSW Business Chamber and ACCI who have signed a confidentiality undertaking.

4. Unredacted lay witness statements to which the Confidentiality Orders apply will not be published on the FWC website, nor will they be copied or published except for the purpose of briefing Counsel. At the end of the proceedings, these statements should be destroyed or returned to the ACTU.

5. If other employer organisations wish to obtain the unredacted witness statements, then they will be required to make an application to the Commission. The ACTU will take a position on these applications on a case-by-case basis.’

[8] The ACTU provided draft consent confidentiality orders. We have some concerns about the drafting of the proposed orders and this matter will be the subject of a mention at 9:30 am on Thursday 12 August 2021 before the President.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWCFB 2047.

 2   [2021] FWCFB 4030.

 3   [2021] FWCFB 4465.

 4   [2021] FWCFB 4465.