STATEMENT

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

4 yearly review of modern awards–Family and Domestic Violence Leave
(AM2015/1)

4 yearly review of modern awards – leave to deal with family and domestic violence model term – Fair Work Amendment (Family and Domestic Violence Leave) Act 2018.

[1] On 6 July 2018 we issued a decision 1 finalising the ‘leave to deal with family and domestic violence’ model term (the model term) and concluding:

“…we are satisfied that it is necessary to vary all modern awards to include the model term to ensure that those modern awards achieve the modern awards objective”.

[2] Determinations varying 123 modern awards 2 were issued on 30 July 2018 and the variation took effect from 1 August 2018.

[3] The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (the Amendment Act) amended the Fair Work Act 2009 (the FW Act) to include an entitlement to unpaid family and domestic violence leave (the NES entitlement). The Amendment Act received Royal Assent on 12 December 2018 and commenced from 13 December 2018. The Explanatory Memorandum states:

‘The entitlement in the Bill to unpaid family and domestic violence leave is consistent with the new modern award entitlement that the Commission inserted into all modern industry and occupation awards. After broad consultation, the Commission finalised the wording of the Model Clause to be inserted into the modern awards on 6 July 2018.’

[4] The model term is set out at Attachment A to this Statement and the NES entitlement is at Attachment B.

[5] As set out above, the intention of the Amendment Act was to insert an entitlement into the NES that is consistent with the model term. The NES entitlement has substantially reproduced most of the elements of the model term with some differences in drafting. In particular, the following differences have been identified:

•  The model term has no equivalent to s.106A(3) which deals with the application of the entitlement for casual employees. Section 106A(3) appears consistent with the terms of the model term.

•  The model term has no equivalent to s.106A(4), which allows for an employee to take unpaid family and domestic violence leave as a single continuous 5 day period or separate periods of one or more days each or any separate periods to which the employee and the employer agree, including periods of less than one day. However, it appears that the model term is to the same effect (if effect is given to the intent of the Note under X.3 in the model term).

•  The model term has no equivalent to s.106D (Operation of unpaid family and domestic violence leave and leave for victims of crime). It appears that this provision is consistent with the intent of the model term not to affect entitlements to leave for victims of crime. In addition, s.29(2) of the Act provides that the model term operates ‘subject to’ State and territory laws dealing with such leave.

•  The model term has no equivalent to s.106E but this does not appear to be inconsistent with the model term.

•  The model term has no equivalent to the commencement provision in relation to the new Subdivision CA (cl.39 of Schedule 1 to the Act), it appears this provision accords with the intent of the model term.

•  The NES entitlement provision has no equivalent to cl.X.5 of the model term. However, cl.X.5 operates subject to s.22(4).

•  The NES entitlement has no equivalent to the Note under cl.X.6 of the model term, but the text of the Note is in the Explanatory Memorandum at [43].

•  The NES entitlement has no equivalent to the Note under cl.X.7, and, in particular, does not include any note suggesting that an employer should consult with employees regarding the handling of the information concerned.

•  The NES entitlement provision has no express equivalent to cl.X.8 of the model term. However, the NES entitlement does include the narrower s.107(4) (confined to the notice and evidence requirements relating to the leave) and it appears that the operation of the NES entitlement is consistent with cl.X.8.

[6] It seems to us that the model term and the effect of the NES entitlement are substantially the same.

[7] During the award modernisation process a Full Bench of the Australian Industrial Relations Commission stated:

‘We have resisted suggestions that the terms of the NES should be included in the awards. As we understand it we are obliged by the terms of the consolidated request not to simply repeat the terms of the NES in modern awards.’ 3

[8] This approach of including a reference to the NES instead of reproducing NES entitlements in modern awards has continued throughout the 4 yearly review process. Consistent with this approach, it is our provisional view that the model term be deleted in the exposure drafts produced as part of the 4 yearly review and replaced with the following:

X. Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES.

[9] As the model term is a new entitlement which has only appeared in modern awards since 1 August 2018, we have also formed the provisional view that the model term should remain in modern awards until they are replaced by the exposure drafts later this year. A timetable for the finalisation of the exposure draft process will be issued shortly.

[10] Any party who objects to the provisional views expressed above should file a submission outlining the reasons for their objection by 4pm on Wednesday 13 March 2019. Submissions should be sent to amod@fwc.gov.au and will be published on the Commission’s website.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Attachment A–Model term

X. Leave to deal with Family and Domestic Violence

X.1 This clause applies to all employees, including casuals.

X.2 Definitions

(a) In this clause:

family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

family member means:

(i) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or

(ii) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or

(iii) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

(b) A reference to a spouse or de facto partner in the definition of family member in clause X.2(a) includes a former spouse or de facto partner.

X.3 Entitlement to unpaid leave

An employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:

(a) the leave is available in full at the start of each 12 month period of the employee’s employment; and

(b) the leave does not accumulate from year to year; and

(c) is available in full to part-time and casual employees.

Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.

2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence.

X.4 Taking unpaid leave

An employee may take unpaid leave to deal with family and domestic violence if the employee:

(a) is experiencing family and domestic violence; and

(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

X.5 Service and continuity

The time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

X.6 Notice and evidence requirements

(a) Notice

An employee must give their employer notice of the taking of leave by the employee under clause X. The notice:

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

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

(b) Evidence

An employee who has given their employer notice of the taking of leave under clause X must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause X.4.

Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

X.7 Confidentiality

(a) Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X.6 is treated confidentially, as far as it is reasonably practicable to do so.

(b) Nothing in clause X prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

X.8 Compliance

An employee is not entitled to take leave under clause X unless the employee complies with clause X.

Attachment B–NES entitlement

Subdivision CA—Unpaid family and domestic violence leave

106A  Entitlement to unpaid family and domestic violence leave

(1)  An employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period.

(2)  Unpaid family and domestic violence leave:

(a)  is available in full at the start of each 12 month period of the employee’s employment; and

(b)  does not accumulate from year to year; and

(c)  is available in full to part-time and casual employees.

(3)  For the purposes of subsection (2), if an employee is employed by a particular employer:

(a)  as a casual employee; or

(b)  for a specified period of time, for a specified task or for the duration of a specified season;

the start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.

(4)  The employee may take unpaid family and domestic violence leave as:

(a)  a single continuous 5 day period; or

(b)  separate periods of one or more days each; or

(c)  any separate periods to which the employee and the employer agree, including periods of less than one day.

(5)  To avoid doubt, this section does not prevent the employee and the employer agreeing that the employee may take more than 5 days of unpaid leave to deal with the impact of family and domestic violence.

106B  Taking unpaid family and domestic violence leave

(1)  The employee may take unpaid family and domestic violence leave if:

(a)  the employee is experiencing family and domestic violence; and

(b)  the employee needs to do something to deal with the impact of the family and domestic violence; and

(c)  it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

Note 1: Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) are arranging for the safety of the employee or a close relative (including relocation), attending urgent court hearings or accessing police services.

Note 2: The notice and evidence requirements of section 107 must be complied with.

(2)  Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee that:

(a)  seeks to coerce or control the employee; and

(b)  causes the employee harm or to be fearful.

(3)  A close relative of the employee is a person who:

(a)  is a member of the employee’s immediate family; or

(b)  is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Note: Immediate family is defined in section 12.

106C  Confidentiality

(1)  Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.

(2)  Nothing in this Subdivision prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Note: Information covered by this section that is personal information may also be regulated under the Privacy Act 1988.

106D  Operation of unpaid family and domestic violence leave and leave for victims of crime

(1)  This Subdivision does not exclude or limit the operation of a law of a State or Territory to the extent that it provides for leave for victims of crime.

(2)  If an employee who is entitled, under a law of a State or Territory, to leave for victims of crime is also entitled to leave under this Subdivision, that law applies in addition to this Subdivision.

(3)  A person who is a national system employee only because of section 30C or 30M is entitled to leave under this Subdivision only to the extent that the leave would not constitute leave for victims of crime.

Note: Leave for victims of crime is a non-excluded matter under paragraph 27(2)(h).

106E  Entitlement to days of leave

What constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of section 85 and Subdivisions B and C.

 1   [2018] FWCFB 3936

 2   Including the Australian Government Industry Award 2015

 3   [2008] AIRC 1001 at [34]