| [2021] FWCFB 6028 |
| 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 |
MELBOURNE, 19 OCTOBER 2021 |
Family and domestic violence leave review 2021 – research program – draft survey – timetable varied.
[1] The Commission is conducting a review of the family and domestic violence leave terms in modern awards (FDV Review). The Commission’s research program for the FDV Review includes:
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.
[2] As noted in the correspondence to parties dated 13 October 2021, the WAD analysis will be published by 3 November 2021. The literature and data review will be available at the same time.
[3] The qualitative assessment report will be available in mid to late November 2021. In a statement 1 published on 23 September 2021, the Full Bench sought comments on whether any changes to the timetable are necessary in light on the likely date of delivery of the qualitative research.
[4] This statement deals with the proposed amendments to the timetable and the finalisation of the draft survey instrument.
[5] Submissions in relation to the survey and the timetable were received from:
• Australian Council of Trade Unions (ACTU)
• Australian Industry Group (Ai Group)
• Western Australian Local Government Association (WALGA)
[6] A draft survey was published with a statement on 23 April 2021 2. Interested parties were invited to comment on the draft survey by 13 August 2021.
[7] Ai Group, the Australian Chamber of Commerce and Industry (ACCI), Australian Business Industrial and the NSW Business Chamber (employer parties) filed a joint submission in response to the draft survey.
[8] A conference agenda was published on 6 October 2021 setting out a range of questions for the parties to be discussed at the conference. A conference was held on 7 October 2021 and transcript of the conference is available on the transcripts page of the FDV Review section of the Commission’s website.
[9] The following issues were agreed or not contested at the conference:
• That sections 2 to 4 be re-ordered as follows:
• Section 2: Unpaid family and domestic violence leave in the Fair Work Act 2009
• Section 3: Paid family and domestic violence leave
• Section 4: Other family and domestic violence leave and support in your organisation
• The proposed additions to question 9, and
• The proposed additions to question 17 with a minor amendment.
[10] There was some disagreement about the remaining issues. At the conclusion of the conference, the parties were asked to have further discussions to try and settle the contents of the survey.
[11] An amended draft survey is attached (Attachment A). The amended draft incorporates the agreed matters from the conference and makes the following further changes:
• The survey does not include a list of the 155 modern awards. This would add length and complexity to the survey document. As suggested by ACCI at the conference, a note has been added to this question, directing employers to the Fair Work Ombudsman’s Find My Award tool (question 3).
• The questions relating to award and enterprise agreement coverage have been amended to provide the following options (questions 2 and 4):
Are any of your employees covered by a modern award?
[ ] Yes all of them
[ ] Yes some of them
[ ] No
• The question asking the business to identify their industry has been reinstated (question 6).
• The additional question proposed by the employer parties in relation to the reasons for not granting additional unpaid leave has been included (question 12).
• The following question has been moved to the end of section 3 to avoid confusion (question 21):
Is your organisation covered by an enterprise agreement that contains paid family and domestic violence leave entitlements?
[ ] Yes
[ ] No
• The additional questions proposed by the employer parties in section 4 have been included (questions 24 to 26).
[12] A draft of the covering email to accompany the survey is at Attachment B.
[13] Parties can file any further comments in relation to the draft survey and the covering email by 4.00 pm on Thursday 21 October 2021.
[14] A final version of the survey and covering email will be provided to the parties by Monday 25 October 2021.
[15] The Commission will assist in administering the survey. The Commission staff member responsible for the survey will contact the parties to provide a point of contact for settling the technical aspects of the survey.
[16] The following timetable for the survey, proposed by Ai Group will be adopted:
• ACCI and Ai Group are to arrange for the Survey to be distributed to employers by 29 October 2021.
• The Survey will close on 3 December 2021.
• The results of the Survey, in the form of a report, are to be released by the Commission on 10 December 2021.
[17] WALGA seek an extension for the filing of submission opposing the proposed variations to modern awards from 5 November 2021 to 10 December 2021.
[18] The timetable proposed by the ACTU is set out below:
“1. The agreed survey instrument is to be issued no later than 22 October 2021, closing 26 November 2021.
2. The FWC will publish a survey report published by 4:00pm on 10 December 2021.
3. The date by which any party opposing proposed variations to modern awards is to file their evidence and written submissions is extended from 5 November 2021 to 4.00pm on 22 December 2021.
4. The ACTU, or any party proposing variations to modern awards, is to file any further or updated submissions and/or evidence relating only to the FWC’s research program, by 4.00pm on 22 December 2021.
5. Any party wishing to file evidence and submissions in reply to any of the evidence and submissions filed pursuant to (3) and (4) above, is to do so by 4:00pm on 4 February 2022.
6. The matter is listed for mention at 9.30am on 14 or 15 February 2022, by which time the parties are to have informed each other of the witnesses required for cross-examination, and prepared a joint hearing plan addressing the order of witnesses and each parties’ approximate estimates of time for cross-examination.
7. The matter is listed for hearing in the week commencing 21 February 2022.
8. By no later than 4.00pm on 3 March 2022, the parties are to file and exchange final written submissions addressing only the conclusions to be drawn from the evidence, and limited to 15 pages.
9. The matter is listed for final oral submissions on 10 March 2022 on an estimate of one day.”
[19] Ai Group propose the following timetable:
“5. The ACTU and parties supporting the ACTU’s proposed variation to awards are to file any revised or further submissions and evidence in light of completion of the Commission’s research program by 4pm on 22 December 2021.
6. Parties opposed to the ACTU’s proposed variation are to file submissions and any evidence on which they seek to rely in reply by 4pm on 4 February 2022.
7. The ACTU and parties supporting the ACTU’s proposed variation are to file material in reply to the parties opposed to the ACTU’s proposed variation by 4pm on 18 February 2022.
8. The matter is listed for mention on 28 February 2022. The parties are to have informed each other of the witnesses required for cross-examination prior to the mention and Ai Group, ACCI and the ACTU are to have prepared and filed a joint hearing plan addressing the order of witnesses prior to the mention.
9. The matter is to be listed for hearing on a date not before 7 March 2022 (estimate of 5 days) for the purposes of dealing with the evidence.
10. Interested parties are to file final submissions addressing matters arising from the evidence by 4pm on 18 March 2022.
11. Final written submissions in reply are to be filed on 25 March 2022.
12. The matter is to be listed for a day of hearing on [insert date convenient to the Commission but not before 4 April 2022] to provide the parties with an opportunity to make final oral submissions.”
[20] Balancing the different proposals of the parties we have decided to vary the timetable and issue the following directions:
1. The ACTU and parties supporting the ACTU’s proposed variation to awards are to file any revised or further submissions and evidence in light of completion of the Commission’s research program by 4pm on 22 December 2021.
2. 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 4.00 pm (AEDT) on 4 February 2022.
3. Submissions and evidence in reply are to be filed by 4.00 pm on Friday 19 November 2021 4.00 pm on Friday 18 February 2022.
4. The matter will be listed for Mention at 9.30 am (AEDT) on Wednesday 24 November 20219.30 am (AEDT) on Wednesday 23 February 2022. The parties are to have informed each other of the witnesses required for cross-examination prior to the mention and Ai Group, ACCI and the ACTU are to have prepared and filed a joint hearing plan addressing the order of witnesses prior to the mention.
5. The matter will be listed for hearing on 29 November 2021 28 February and 1 to 4 March 2022.
6. By no later than 4.00 pm on 11 March 2022, the parties are to file and exchange final written submissions addressing only the conclusions to be drawn from the evidence, and limited to 15 pages.
7. The matter is listed for final oral submissions on 17 March 2022 with an estimate of one day.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR735040>
The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards. The purpose of this survey is to understand how employers support employees who have experienced or are experiencing family and domestic violence and in particular, whether employees have access to either paid or unpaid family and domestic violence leave.
Complete this survey if:
• You are an employer; and
• You have employees covered by one or more modern awards and / or enterprise agreements.
You should only complete the survey once, regardless of how many times you have received an invitation to complete the survey.
How do I know if my employees are covered by a modern award?
You can find a complete list of modern awards on the Fair Work Commission’s website. Each modern award includes a coverage clause which explains who is covered by the particular award.
If you’re not sure which modern award (or modern awards) might apply to your organisation, you can use the Fair Work Ombudsman’s Find my award tool on their website.
What will the survey ask?
The survey is divided into 4 sections. Depending on your leave policy and practices, you may not need to complete every section.
Section 1: Your organisation and your employees
• This section includes questions about the number of employees you have, the number of your employees that are covered by a modern award, and the location and industry of your organisation.
Section 2: Unpaid family and domestic violence leave
• This section includes questions about unpaid family and domestic violence leave entitlements accessed by your employees.
Section 3: Paid family and domestic violence leave
• This section includes questions about any paid family and domestic violence leave available to your employees.
Section 4: Other family and domestic violence leave and support in your organisation
• This section includes questions about any family and domestic violence leave policies that are in place in your organisation.
What will you do with my responses?
The Commission will use your responses to understand how employers with employees covered by modern awards support their employees who have experienced or are experiencing family and domestic violence.
Survey responses will remain confidential. We will not be able to identify you by your responses.
If you have any questions or concerns about your privacy or how the data will be used, please contact surveyresearch@fwc.gov.au.
1. How many employees do you currently employ?
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2. Are any of your employees covered by a modern award?
[ ] Yes all of them
[ ] Yes some of them
[ ] No- go to question 3
3. Which modern awards cover your employees?
If you’re not sure which modern award (or modern awards) might apply to your organisation, you can use the Fair Work Ombudsman’s Find my award tool on their website.
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4. Are any of your employees covered by an enterprise agreement?
[ ] Yes all of them
[ ] Yes, some of them
[ ] No
5. How many of your employees are:
Gender |
Number of employees |
| Female |
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| Male |
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| Other (Individuals who identify as non-binary, gender diverse, or with descriptors other than female or male.) |
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| Prefer not to disclose / don’t know |
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Total |
6. What industry does your business operate in (tick all that apply)?
[ ] Agriculture, forestry and fishing [ ] Mining [ ] Manufacturing [ ] Electricity, gas, water and waste services [ ] Construction [ ] Wholesale trade [ ] Retail trade [ ] Accommodation and food services [ ] Transport, postal and warehousing [ ] Information media and telecommunications [ ] Financial and insurance services |
[ ] Rental, hiring and real estate services [ ] Professional, scientific and technical services [ ] Administrative and support services [ ] Public administration and safety (private) [ ] Education and training (private) [ ] Health care and social assistances (private) [ ] Arts and recreation services [ ] Other (please specify)
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7. In which state or territory is your organisation located (tick all that apply)?
[ ] Australian Capital Territory
[ ] New South Wales
[ ] Northern Territory
[ ] Queensland
[ ] South Australia
[ ] Tasmania
[ ] Victoria
[ ] Western Australia
Employers covered by the Fair Work system (the national system) are required to provide all employees access to 5 days’ unpaid family and domestic violence leave per year (Sections 106A-E of the Fair Work Act 2009).
8. Have any of your employees taken unpaid family and domestic violence leave in the last 12 months?
[ ] Yes - Go to question 9
[ ] No –
[ ] Don’t know
9. How many employees have taken unpaid family and domestic violence leave in the last 12 months?
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10. Thinking about your employees who have taken unpaid family and domestic violence leave, have any employees requested more than 5 days’ leave in a 12 month period?
[ ] No – Go to question 12
[ ] Yes - Please detail the number of days requested in total for each such employee below:
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11. If employees requested more than 5 days’ unpaid family and domestic violence leave in a 12 month period, were the requests granted?
[ ] Yes – Go to question 13
[ ] No – Go to question 12
[ ] Only some were granted – Go to question 12
12. Why were some or all of the requests not granted? (select all that applied)
[ ] The employee was not eligible to take the leave.
[ ] The employee was eligible to take a form of paid leave.
[ ] The employee was eligible to take another form of unpaid leave.
[ ] The employee did not provide the evidence required.
[ ] The business was unable to accommodate the leave requested because of the operational and / or staffing consequences that it would have had.
[ ] Other:
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13. Did you require employees taking unpaid paid family and domestic violence leave to provide any evidence of their need to take the leave?
[ ] No – Go to question 15
[ ] Yes – Go to question 14
[ ] Sometimes
If you answered ‘yes’ or ‘sometimes’ – Please provide details of the type of evidence required (this might include court notices, medical certificates or documents issued by police or family violence support services etc.)
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14. If you required employees to provide evidence of their need to take unpaid family and domestic violence leave, what steps did you take to keep that information confidential?
[ ] Consulted with the employee about how they wanted the information treated
[ ] Sighted the documents only, did not keep copies
[ ] Kept as a confidential employee record
[ ] Other (please provide details below)
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15. Have any of your employees taken other types of leave when they are experiencing family and domestic violence (other types of leave include annual leave and personal/carer’s leave)?
[ ] Yes
[ ] No
[ ] Don’t know
Section 3: Paid family and domestic violence leave
Note: In this section, ‘paid family and domestic violence leave’ means a form of paid leave other than leave that the employee is entitled to under the NES or a modern award (e.g. personal / carer’s leave, compassionate leave, annual leave).
16. Does your organisation provide employees with paid family and domestic violence leave?
[ ] Yes – Go to question 17
[ ] No - Go to section 4
17. How many days of paid family and domestic violence leave can your employees take each year?
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18. Is the paid leave available to all employees (full-time, part-time and casual)? (tick all that apply)
[ ] Full-time employees
[ ] Part-time employees, in full
[ ] Part-time employees, on a pro-rata basis
[ ] Casual employees
19. When can employees access paid family and domestic violence leave (tick all that apply)?
[ ] Attending medical appointments
[ ] Attending court hearings
[ ] Attending support services
[ ] Accessing legal or police services
[ ] Making arrangements for the safety of the employee (such as relocation)
[ ] The policy/entitlement does not specify the circumstances when employees can access paid leave
[ ] Other (please provide details below)
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20. Do you require employees accessing paid family and domestic violence leave to provide any evidence of their need to take the leave?
[ ] No
[ ] Yes
[ ] Sometimes
If you answered ‘yes’ or ‘sometimes’ - please provide details of the type of evidence required (this might include court notices, medical certificates or documents issued by police or family violence support services etc.)
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21. Is your organisation covered by an enterprise agreement that contains paid family and domestic violence leave entitlements?
[ ] Yes
[ ] No
Section 4: Other family and domestic violence leave and support in your organisation
As noted in Section 2, employers covered by the Fair Work system (the national system) are required to provide all employees access to 5 days’ unpaid family and domestic violence leave per year (Sections 106A-E of the Fair Work Act 2009).
Section 4 of this survey relates to the other forms of leave and / or support provided to employees who experience family and domestic violence.
22. Does your organisation have a policy in place to support employees who are experiencing family and domestic violence (this may be a formal written policy or an informal / unwritten policy)?
[ ] Yes – Go to question 23
[ ] No – Go to question 24
[ ] Not yet but we intend to create a policy – Go to question 24
If your organisation has a written policy in place, please provide a copy of the policy to the Commission, by email to surveyresearch@fwc.gov.au. The policy document will only be used by the Commission for analysis about the types of support covered in a family and domestic violence leave policy. It will be de-identified in any published reports and the name of your organisation will not be disclosed.
23. What type of support does your formal or informal policy include (tick all that apply):
[ ] Paid family and domestic violence leave entitlements
[ ] Unpaid family and domestic violence leave entitlements (in addition to the unpaid leave entitlements contained in the NES)
[ ] Access to annual leave, personal / carer’s leave or long service leave
[ ] Other financial support (such as support with relocation or court costs)
[ ] Flexible working arrangements (such as changes to duties or work location)
[ ] Employee assistance program or other support service
[ ] Training
[ ] Safety plan
[ ] Other, please provide details
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24. Has your organisation received a request for leave or another form of support from one or more employees experiencing family and domestic violence in the past 2 years?
[ ] Yes – Go to question 25
[ ] No – Go to question 26
[ ] Don’t know – Go to question 26
25. Did your organisation provide the employee with any form of leave or support, in addition to leave or support required by the Fair Work Act 2009, an enterprise agreement or modern award?
[ ] Yes – in all instances
[ ] Yes – in some instances
[ ] No
[ ] Don’t know
26. If your organisation received a request for leave or another form of support from an employee experiencing family and domestic violence, would your organisation provide the employee with leave or support, in addition to what is required by the by the Fair Work Act 2009, any applicable enterprise agreement or modern award?
[ ] Yes
[ ] No
[ ] It would depend on the circumstances
[ ] Don’t know
END SURVEY. THANK YOU FOR PARTICIPATING.
Dear X,
The Fair Work Commission (Commission) is conducting a review of entitlements to family and domestic violence leave in modern awards.
You have been chosen to take part in this survey as a member of the Australian Chamber of Commerce and Industry/the Australian Industry Group (select relevant employer org). Help provide your insights and feedback by completing this survey before [DATE].
What will the survey ask?
The survey will take less than 10 minutes to complete and asks about four main topics:
1. Your organisation and your employees. For example, where your organisation is, how many employees you have and how many employees are covered by a modern award or an enterprise agreement.
2. The unpaid family and domestic violence leave entitlement in the Fair Work Act 2009. This includes questions about any unpaid leave requested by your employees, if you granted the leave and the types of evidence you required from your employees.
3. Any paid family and domestic violence leave provided by your organisation. This includes questions about who can access the paid leave and when they can access it.
4. Any other family and domestic violence leave or support available in your organisation. This includes questions about any formal or informal policies you have in place, the types of support provided to employees and whether you have received any requests from employees for support.
What will your responses be used for?
The Commission will use your responses to understand how organisations assist employees who are experiencing family and domestic violence.
The survey is conducted by the Commission and your responses are anonymous.
Click here to complete the survey.
If you have any questions or concerns about your privacy or how the data will be used, please contact X.