[2017] FWC 5192
FAIR WORK COMMISSION

STATEMENT


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

Family and Domestic Violence Leave Conference
(AM2015/1)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 6 OCTOBER 2017

4 yearly review of modern awards–family and domestic violence leave clause –model term–conduct of conferences.

[1] On 15 September 2017, the Full Bench constituted to hear this matter issued a Statement 1 to assist parties in the preparation of their submissions in reply. At the same time as the Statement was issued, a background paper, research list and summary of submissions prepared by staff of the Commission were also published.

[2] Submissions in reply were received from the following parties:

[3] Conferences were listed on 11 and 13 October 2017, however, I consider that a one day conference is sufficient and propose to abandon the listing on Wednesday 11 October.

[4] The conference on Friday 13 October will be before me in Sydney. All requests for video links should be sent to chambers.ross.j@fwc.gov.au as soon as possible. An amended notice of listing will be issued shortly. Following the conference parties will have an opportunity to consider the issues discussed and can advise the Full Bench of any change in their position at the commencement of the hearing on Thursday 19 October 2017.

[5] The purpose of this Statement is to identify the issues for discussion at the conference. Given that each of the interested parties has expressed the view that the Commission does not have the power to extend the NES entitlement to personal/carer’s leave to incorporate family and domestic violence leave, discussions in relation to this issue are unlikely to be productive. I intend to focus the discussion on unpaid leave and the various elements of a possible model term, as set out below.

[6] The discussion at the conference will relate to the concept of a model term only and not award-specific submissions.

Definitions of family and domestic violence

[7] The parties agree that the definition of family and domestic violence is crucial to the effective operation of any model term however, there is no agreement about how that definition may be drafted.

[8] In their Decision 2 dated 3 July 2017 (the Majority Decision), Deputy President Gooley and Commissioner Spencer made the following comments about the definition proposed by the ACTU:

‘[111] We accept the submission that the current clause is too broad and uncertain in its operation.

[112] For example, there is no requirement that the family member who is the perpetrator of the violence reside with the employee who is applying for the leave or that the employee is at risk of repeated violence. So for example, an employee who was assaulted by his or her brother would be entitled to family and domestic violence leave even if the future contact with the brother was unlikely. Further the definition would capture violence committed by a member of the person’s household towards her or him even if no relationship existed between the household member and the employee other than they shared a house. We accept the submission that this is too broad a scope.

[9] The background paper at [7]-[15] discusses various options for defining family and domestic violence.

[10] The ACTU have suggested some amendments to the definition proposed in the initial proceedings and also draw the Commission’s attention to a number of statutory definitions and definitions contained in enterprise agreements. The ACTU’s amended clause is at Attachment A to this Statement. The TWU support the submissions of the ACTU.

[11] ACCI submit that a suitably clear and properly contained definition may be elusive, however a clear articulation of circumstances in which the leave can be used will help overcome this challenge and that this part of the dialogue can be further explored in the anticipated conferences. 3 ACCI’s suggested clause is at Attachment B to this Statement.

[12] AMIC suggest that the Family Law Act 1975 (Cth) (Family Law Act) definition might be a useful point for discussion and the ACTU also recognise that this definition might be helpful, with some amendment. Ai Group submit that the Family Law Act definition is more rigorous than any other definition proposed in the proceedings to date, however, express some reservation about the appropriateness of using a statutory definition in the modern awards context. The definition of family violence from the Family Law Act is set out at Attachment C.

[13] MEA express a preference for the definition set out in Family Violence – A National Legal Response.

[14] The conference will discuss the most appropriate definition for a model term and seek to resolve this issue.

Should a list of situations in which an employee may access family and domestic violence leave be included?

[15] The parties agree that any model term should include a list of situations in which an employee may access family and domestic violence leave.

[16] The Majority Decision sets out the following views in relation to the situations in which an employee may access leave:

[113] Further, we consider that the leave must be necessary to deal with the family and domestic violence. We accept the submission that the expression “attending activities related to the experience of being subjected to family and domestic violence” is too uncertain.

[114] Employees’ experiences of domestic violence can have long term effects both physically and psychologically. An employee whilst fit for work may need on-going counselling or a child may need on-going counselling. We accept the submission that while employers have a role in supporting employees who have experienced family and domestic violence, the provision of leave for family and domestic violence should be limited to dealing with the immediate impact of such violence such as finding alternative accommodation or attending urgent court hearings.

[17] MEA submit that a list should encompass situations limited to where an employee has a court appointment, needs to meet their lawyer, needs to make alternative housing arrangements or needs to make alternative care arrangements for a dependant.

[18] ACCI previously submitted a draft model term for the consideration of the parties 4 and maintain a preference for the list of situations set out in that term which grants an entitlement to attend :

(a) with police to report on an incident of domestic violence (including any required ongoing attendance with police);

(b) court associated with the act or acts;

(c) with a lawyer to seek advice or representation in relation to or arising from the act or acts;

(e) a Government support service providing support to persons experiencing domestic violence; or

(f) locate refuge or shelter or temporary accommodation in relation to or arising from the act or acts,

provided it is impracticable to attend outside work time.

[19] AMIC submit that the circumstances should be limited to those set out in the preliminary views of the majority decision as ‘dealing with the immediate impact of such violence such as finding alternative accommodation or attending urgent court hearings’ 5.

[20] The conference will seek to reach an agreement in respect of the situations that would appear in a list and whether such a list should be exhaustive.

Notice and evidence requirements

[21] ACCI submit that the nature of the evidence required for taking personal leave gives adequate guidance for the taking of leave relating to family and domestic violence. Ai Group agree that this is an appropriate starting point but note that it is difficult to provide a definitive view until the criteria for eligibility for an entitlement is settled.

[22] AMIC submit that the evidence requirements should be clear and strict, acknowledging the rights of the employer. MEA similarly submit that evidentiary requirements must adequately substantiate the claim so the employer can be satisfied that the leave is being claimed appropriately and not being misused.

[23] The ACTU submit that the issue of evidentiary requirements may be particularly amendable to resolution at the conference and note the suggested wording in their draft determination.

[24] The conference will seek to reach an agreement in respect of the notice and evidence requirements of a model term.

Should casual employees be able to access unpaid family and domestic violence leave?

[25] The ACTU submission supports extending any unpaid entitlement to family and domestic violence leave to casual employees.

[26] ACCI submit that the guidance from the Act supports the view that casual and part time employees be entitled to access forms of unpaid leave but that this point might usefully be considered at the conference.

[27] MEA submits that casual employees who are engaged on a regular and systematic basis should be able to access unpaid family violence leave. This approach is consistent with casual entitlement to other forms of leave, such as compassionate leave or unpaid carer’s leave.

[28] Ai Group submit that casual employees should not be entitled to unpaid domestic violence leave as such employees receive a casual loading to compensate for the fact that they are not entitled to most forms of leave that apply to full-time and part-time employees. AMIC submits that the inclusion of casuals is problematic but note that regular and systematic casuals have access to more entitlements under the Act than those who are not regular and systematic.

[29] The conference will seek to reach agreement on the issue of whether any unpaid entitlement should extend to casual employees.

Any other issue a party wishes to raise

[30] Parties may raise other issues that they believe are appropriate for discussion and possible resolution at the conference.

[31] The parties should come to the conference prepared to address the issues set out above and bring with them a copy of the background paper, and this Statement.

PRESIDENT

Attachment A

FAMILY AND DOMESTIC VIOLENCE LEAVE – ACTU PROPOSED MODEL TERM

X.1 Definition

For the purpose of this clause:

Family and domestic violence is any violent, threatening or abusive behaviour by a person against to control or dominate a current or former partner or member of the person’s family or household.

Employee includes part-time and casual employees.

Sensitive personal information means information that identifies the employee and discloses their experience of being subjected to family and domestic violence.

X.2 Family and Domestic Violence Leave

X.2.1 An employee is entitled to 10 days per year of paid family and domestic violence leave for the purpose of attending to activities related to the experience of being subjected to family and domestic violence. Such activities may include (but are not limited to):

(b) relocation or making other safety arrangements.

X.2.2 An employee’s paid yearly entitlement to family and domestic violence leave:

(c) does not accrue for year to year; and

(d) is not payable on termination of employment.

X.2.3 Upon exhaustion of the leave entitlement in clause X.2.1, employees will be entitled to up to 2 days unpaid family and domestic violence leave on each occasion for the purpose of attending to activities related to the experience of being subjected to family and domestic violence.

X.2.4 Family and domestic violence leave may be taken as:

(a) a continuous period;

(b) a single period of one day;

(c) any separate period/s of less than one day which the employer and employee agree.

X.2.5 Family and domestic violence leave is in addition to other leave entitlements in modern awards and the National Employment Standards.

X.3 Notice and Evidentiary Requirements

X.3.1 The employee shall give his or her employer notice as soon as reasonably practicable of their request to take leave under this clause.

X.3.2 If required by the employer, the employee must provide evidence that would satisfy a reasonable person that the leave is for the purpose as set out in clauses X.2.1 and X.2.3. Such evidence may include a document issued by the police service, a court, a doctor (including a medical certificate), district nurse, maternal and child health care nurse, a family violence support service, a lawyer or a statutory declaration.

X.3.3 Sensitive personal information provided by the employee to the employer for the purposes of seeking leave under this clause will be kept confidential to the extent possible, except where disclosure is required by law or to prevent a serious threat to the life, health and safety of any individual.

Attachment B–ACCI’s proposed term

1.1 Entitlement

An employee who experiences an act or acts of domestic violence committed by a member of the employee’s immediate family and who is a member of the employee’s household shall be entitled to take up to three days leave without pay in a calendar year to attend:

(a) with police to report on an incident of domestic violence (including any required ongoing attendance with police);

(b) court associated with the act or acts;

(c) with a lawyer to seek advice or representation in relation to or arising from the act or acts;

(e) a Government support service providing support to persons experiencing domestic violence; or

(f) locate refuge or shelter or temporary accommodation in relation to or arising from the act or acts,

provided it is impracticable to attend outside work time.

1.2 Leave not to be taken if personal leave is available

Despite anything else in this clause, an employee is not entitled to take leave under this clause if the employee was otherwise entitled to take personal/carers leave.

1.3 Notice

(a) An employee must give their employer notice of the taking of leave under this clause by the employee.

(b) The notice must:

(i) be given to the employer as soon as practicable (which may be a time after the leave has started); and

(ii) advise the employer of the period, or expected period of the leave.

1.4 Evidence

(a) An employee who has given their employer notice of the taking of leave under this clause must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in this clause and it was impracticable to attend outside work time.

(b) To avoid any doubt, a statutory declaration is sufficient for the purposes of clause 1.4(a).

1.5 Additional Leave by agreement

An employer and an employee may agree to allow the employee to take unpaid leave in addition to the leave set out in clause 1.1 above.

1.5 Definitions

In this clause the following words have the following meaning:

Domestic Violence means [insert].

Immediate Family means a spouse, de facto partner, child, parent or sibling of the employee

Attachment C– definition of family violence from Family Law Act

4AB  Definition of family violence etc.

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

 1   [2017] FWCFB 4729.

 2   [2017] FWCFB 3494.

 3   Ibid at [22].

 4   ACCI submission 1 September 2017 at Annexure A.

 5   Majority at [114].

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