Introductory Info

Date introduced: 13 September 2018
House: House of Representatives
Portfolio: Jobs and Innovation
Commencement: The day after the Act receives the Royal Assent.

Purpose of the Bill

The purpose of the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the Bill) is to amend the Fair Work Act 2009 (FW Act) to include an entitlement to five days of unpaid family and domestic violence leave (FDV leave) in the National Employment Standards (NES).[1]

Background

As noted in the Bill’s Explanatory Memorandum, family and domestic violence (FDV) is a significant community issue, which has a real and tangible impact on employees and employers in the workplace.[2]

Domestic violence leave: policy background and issues

FDV leave is generally understood to be leave that an employee who is a victim of FDV may access in order to respond to the impact of that violence, where it is impractical to do so outside ordinary work hours. Examples of the kinds of reasons an employee may take FDV leave include: to attend police interviews or court hearings; to make arrangements for their safety or the safety of a close family member (including relocating); and to attend appointments with counselling, medical or legal providers.

This understanding of FDV leave is reflected in the Bill, which would allow an employee to take unpaid FDV leave if ‘the employee 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 the employee’s ordinary hours of work’.[3]

FDV leave is a relatively recent concept in Australia’s industrial relations framework. The first paid FDV leave entitlements were included in enterprise agreements lodged with the Fair Work Commission (FWC) in 2010.[4] This reflects the fact that historically FDV has been conceptualised as a private matter, and not a workplace issue. However there has been increasing recognition over the last decade or so that workplace support offered to employees experiencing FDV is important for their physical, mental and economic wellbeing. As noted by researchers from the University of New South Wales:

The effects of DFV [domestic and family violence] on work lead to career interruptions, lower paid work and under-employment, and economic insecurity is a barrier to women leaving violence; conversely, secure employment is an enabler for women to leave. The clauses ... have the potential to enhance the safety and economic security of victims by allowing them to maintain employment. Ensuring financial security in these ways should be conceptualised as contributing to women's autonomy and ongoing safety.[5]

In 2011 researchers from the Centre for Gender Related Violence Studies at the University of New South Wales, funded by the Commonwealth Department of Education, Employment and Workplace Relations, conducted a national survey of union members investigating the impact of FDV in the workplace. Around thirty per cent of respondents indicated that they had experienced FDV, and around half of those reported that the violence impacted their ability to attend work.[6]

As well as being important for the economic and personal security of victims, research indicates that workplace responses to FDV have the potential to benefit the broader Australian economy. KPMG recently estimated the total annual cost to the Australian economy of violence against women and their children at $22 billion.[7] Of this:

• $860 million was attributed to ‘absenteeism from paid and unpaid work and the inability to perform household tasks and voluntary work’ and
• $1.6 billion was attributed to costs associated with transfer payments including loss of revenue from income tax and additional social security payments.[8]

Measures that assist people experiencing FDV to remain employed, and remain productive at work are therefore likely to benefit not only the individual concerned but also the Australian economy more broadly.

Australian Law Reform Commission report

In 2011, as part of its report into Family Violence and Commonwealth Laws, the Australian Law Reform Commission (ALRC) examined in detail the interaction between FDV, employment law, the FW Act and the NES.[9]

That report examined in detail many of the issues subsequently raised before the proceedings in the FWC that led to an entitlement to unpaid FDV leave being included in modern awards (discussed below) and those raised by the Bill.

Whilst this digest does not examine the ALRC’s report in detail, it does reference key recommendations related to measures proposed by the Bill where appropriate.

Domestic violence leave provisions in other countries

While FDV leave is increasingly being discussed and advocated in the context of government and workplace responses to FDV, and many workplaces are introducing these entitlements into their agreements, only a handful of countries around the world have so far actually legislated for the provision of FDV leave.

The first to do so was the Philippines, in 2004. The Anti-Violence Against Women and Their Children Act of 2004 provides for victims of FDV to take up to ten days of paid FDV leave.[10]

New Zealand recently passed legislation that will provide an entitlement for all employees to take up to ten days of paid FDV leave, in addition to existing sick and holiday leave entitlements.[11] The legislation also provides an entitlement for employees affected by FDV to request a short-term variation to their working hours, and prohibits employment discrimination on the basis of being a victim of FDV. The provisions will take effect in April 2019.

The Canadian Government recently announced that it intends to amend the Canada Labour Code to provide an entitlement to five days of paid FDV leave to workers in the federally regulated jurisdiction who are victims of FDV or the parent of a child who is the victim of FDV.[12] Several Canadian provinces have already legislated for FDV leave. For example, workers in Manitoba are entitled to up to ten days of unpaid leave if they have been employed by the employer for at least 90 days, and they (or a dependent child or protected adult residing with the employee) are the victim of FDV.[13] In Ontario, employees who have been employed by their employer for at least 13 weeks are entitled to two separate FDV leave allotments—up to ten days, and up to fifteen weeks—if they or their child have experienced FDV or sexual violence.[14] The first five days of leave are paid, and the remaining entitlement is unpaid.

Inclusion of family and domestic violence leave in modern awards

Awards are legally binding instruments made by an industrial tribunal that operate with the force of legislation. Modern awards are made by the FWC under the FW Act.

Awards cover employees of employers in particular industries doing particular types of work, and regulate the terms and conditions on which the specified types of employees may be employed (including wage rates, penalty rates, working hours, forms of leave and other matters).[15] This means that Awards – together with the NES – set the minimum employment terms, conditions and standards applicable to particular industries and roles. Further, Awards are the benchmark against which enterprise agreements must be assessed under the ‘better off overall test’ before being approved.[16]

When the FWC exercises its powers in relation to modern awards, it must do so in a manner consistent with the modern award objectives.[17] Those objectives are that the FWC ‘must ensure’ that modern awards, together with the NES, ‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account a range of factors, relevantly including:

• the need to promote social inclusion through increased workforce participation
• the need to promote flexible modern work practices and the efficient and productive performance of work
• the likely impact of any exercise of modern award powers on business, including on:
  • productivity
  • employment costs
  • the regulatory burden and
• the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.[18]

In this context, the FWC has held that the use of the word ‘relevant’ in the modern award objectives indicates an intention ‘that a modern award should be suited to contemporary circumstances’.[19]

In 2017, as part of a modern award review process, the Full Bench of the FWC rejected the Australian Council of Trade Union’s (ACTU’s) claim for a clause allowing for ten days’ paid FDV leave to be included in all modern awards.[20] However, at that time the Full Bench of the FWC expressed a preliminary view that allowing a period of unpaid FDV leave is necessary to meet the modern awards objective contained in the FW Act.[21]

Following that decision, on 26 March 2018 the Full Bench of the FWC decided that an unpaid FDV leave entitlement should be inserted into most awards.[22] On 3 May 2018, the FWC extended that decision to the final three awards and released a draft Model FDV leave clause (Model Clause).[23] After taking submissions regarding the Model Clause, the FWC released the final model clause on 6 July 2018.[24] The effect of this is that from 1 August 2018, all employees covered by modern awards approved under the FW Act are now entitled to five days’ unpaid FDV leave to deal with FDV.[25]

The process of varying modern awards with respect to FDV leave can be reviewed at the FWC’s website. As noted above, interested parties were given the opportunity to comment on a draft Model Clause. During that process, the issue of whether FDV leave should be paid or unpaid was raised. The Full Bench of the FWC deferred consideration of whether employees should be able to access paid FDV leave until June 2021.[26] That is, the FWC did not rule out a move to paid FDV leave at a future point in time and specifically determined to reconsider that issue once further evidence about the operation, uptake and effect of unpaid FDV leave was available to consider.

However, whilst the modern awards varied by the FWC apply to a substantial majority of employers and employees, they do not capture all workplaces for the following reasons:

• not all employees covered by the FW Act are covered by a modern award or other industrial instrument (‘award/agreement free’ employees under section 12 of the FW Act) and
• other employees are covered by enterprise agreements, workplace determinations or other industrial instruments and hence the terms of those industrial instruments (rather than a modern award) will (in the absence of the reforms proposed by the Bill) determine if they have any entitlement to paid or unpaid FDV leave.[27]

As such, currently not all employees have access to FDV leave. The Bill is intended to overcome that issue.[28]

Committee consideration

Senate Education and Employment Legislation Committee

The Bill was referred to the Senate Education and Employment Legislation Committee for inquiry and report. The Committee reported in October 2018 and recommended the Bill be passed.[29] The Opposition and Australian Greens Senators’ dissenting report recommended that the Bill be amended to provide ten days of paid FDV leave.[30]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[31]

Policy position of non-government parties/independents

The Opposition has branded the Bill ‘too little, too late’, stating that five days of unpaid FDV leave is an inadequate response, and calling on the Government to ‘adopt Labor’s commitment to 10 days’ paid domestic and family violence leave in the National Employment Standards. Nothing less will do.’[32] They have not formally stated whether they intend to oppose the current Bill on the grounds that they believe it is insufficient, whether they will seek to amend it, or whether they will support it as a first step towards their ultimate goal of ten days’ paid leave.

The Australian Greens also advocate for an entitlement to ten days of paid FDV leave, having introduced a private member’s bill in February 2018 that would have provided this.[33] The Greens have stated that they will seek to amend the current Bill to provide for ten days of paid FDV leave.[34]

It does not appear as though any other non-government parties or Independent Members and Senators have made public statements regarding their positions on the Bill.

Position of major interest groups

All major interest groups supported the proposed inclusion of five days unpaid FDV leave into the NES. However a number of other issues were raised in submissions to the Senate Committee inquiry. Whilst these are explored in detail under the heading ‘Key issues and provisions’, a summary of the most commonly raised issues is provided below.

Whether family and domestic violence leave should be paid or unpaid

Trade unions, religious organisations, community organisations and the Governments of Western Australia, Queensland and Victoria advocated for FDV leave to be paid, rather than unpaid. Employer organisations argued that FDV leave should be unpaid.

The Law Council of Australia (LCA) indicated that introducing an entitlement to paid FDV leave along with unpaid FDV leave should be considered in the future.

The arguments raised in support of both positions are examined below under the heading ‘Key issues and provisions’.

Number of days of the entitlement

Trade unions, religious organisations, community organisations and the Governments of Western Australia, Queensland and Victoria advocated for the entitlement to FDV leave to be increased from five days to ten days. Employer organisations argued that the FDV leave entitlement should remain at five days.

The LCA indicated that increasing the FDV entitlement to ten days of paid leave should be considered in the future, but that in any case increasing the proposed entitlement to unpaid FDV leave to ten days would be preferable at this time.

The arguments raised in support of both positions are examined below under the heading ‘Key issues and provisions’.

Key definitions

A number of interest groups raised concerns about key definitions including:

• close relative and
• family and domestic violence.

In particular, concerns were raised that the Bill, as drafted, would not extend the entitlement to FDV leave to people experiencing violence at the hands of a current, but non-residential, partner.

Impact on employers

Some employer interest groups raised concerns about the impact of FDV leave on business productivity, profitability and operations. Further, it was also argued that the Bill may introduce a risk that employees could obtain a ‘double benefit’ as a result of overlaps between circumstances covered by the proposed FDV leave and other forms of leave entitlements, such as personal/carers’ leave. In contrast, trade union, community and other organisations argued that the impacts of either unpaid or paid FDV leave would either be negligible or positive.

These issues are explored in below under the heading ‘Key issues and provisions’.

Financial implications

The Bill will not have any financial impacts on the Commonwealth.[35]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[36]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered that the Bill did not raise any human rights concerns, and hence made no comment on the Bill.[37]

Key issues and provisions: who is entitled to family and domestic violence leave?

Proposed subsection 106A(1) provides ‘an employee’ is entitled to five days of unpaid FDV leave in a 12-month period.[38]

Types of employees covered

Proposed paragraph 106A(2)(c) and proposed subsection 106A(3) provide that the proposed entitlement to FDV leave extends to part-time, casual and non-permanent or fixed-term employees. Full-time employees are not specifically referred to.

Issue: are full-time employees entitled to family and domestic violence leave in full?

Concerns were raised that due to the drafting of proposed section 106A, full-time employees may not be entitled to FDV leave ‘in full’, with the LCA arguing:

It is not clear whether proposed paragraph 106A(2)(c) covers every employee. Paragraph 106A(2)(c) currently states that family and domestic violence leave ‘is available in full to part time and casual employees’. For clarity, the Law Council recommends that this section be amended to state that family and domestic violence leave ‘is available in full to: full time; part time; and casual employees’.[39] (emphasis added).

When is an employee entitled to take family and domestic violence leave?

Proposed section 106B provides that an employee is entitled to take FDV leave if:

• the employee is experiencing family and domestic violence (first element)
• the employee needs to do something to deal with the impact of the FDV (second element) and
• it is impractical for the employee to do that thing outside the employee’s ordinary hours of work (third element).

These elements and the issues they raise are examined below.

First element: is the employee experiencing family and domestic violence?

The first element to the FDV leave entitlement (proposed paragraph 106B(1)(a)) is that an employee is experiencing FDV. Proposed subsection 106B(2) defines family and domestic violence as:

... 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.

The Model Clause set down by the FWC refers to ‘a family member’ rather than a ‘close relative’, but is otherwise identical to the above.[40] The definition of close relative and the issues it raises are discussed below. However, a number of submissions expressed the view that the definition of FDV contained in proposed subsection 106B(2) was overly narrow.

For example, the Queensland Government argued that ‘a more extensive definition’ of FDV should be used than that contained in proposed subsection 106B(2).[41] The Queensland Government noted that its own legislation ‘recognises that many behaviours constitute domestic and family violence and provides an extensive and non-exhaustive list of examples’ and that this definition should adopted by the Bill.[42] By way of reference, section 8 of the Domestic and Family Violence Protection Act 2012 (QLD) defines domestic violence as behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that is:

• physically, sexually, emotionally, psychologically or economically abusive or
• is threatening, coercive or in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.[43]

The Queensland legislation further provides that the above includes doing (or threatening or attempting to do) any of the following: causing personal injury to a person, coercing a person to engage in sexual activity, damaging a person’s property or depriving a person of the person’s liberty.[44] Further, the definition of domestic violence under the Queensland legislation also includes:

• threatening a person with the death or injury of the person, a child of the person, or someone else
• threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed
• causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person
• unauthorised surveillance of a person or
• unlawfully stalking a person.[45]

Under the Family Law Act 1975, family violence is defined as violent, threatening or other behaviour by a person that:

• coerces or controls a member of the person’s family or
• causes the family member to be fearful.[46]

The Family Law Act does not require that the person intended to coerce or control the family member, or cause them to be fearful: family violence occurs under the Family Law Act definition where the relevant behaviour either coerces or controls a family member or causes them to be fearful – it does not need to do both. In contrast the Bill imposes a requirement that the violent, threatening or abusive conduct was intended (that is, it sought to) coerce and control the person and the conduct also actually caused harm to the person, or caused the person to be fearful.

This may explain why a number of other submissions supported consideration of the Bill adopting a more expansive definition of FDV to ensure it captures a range of behaviour including emotional, psychological and economic abuse, including along the lines of other legislation.[47]

Issue: limitations imposed by the ‘experiencing’ requirement

The LCA noted that FDV leave is only available if the employee is experiencing FDV. The LCA argued that many employees likely to need to access FDV leave will have left the violent relationship but will need time to do something to deal with the impact of the FDV, even though they are not (strictly speaking) ‘experiencing’ FDV at that time. Therefore, the LCA recommended:

... that proposed paragraph 106B(1)(a) be amended to state: ‘the employee has experienced, or is experiencing, family and domestic violence’ (or words of similar effect).[48] (emphasis added)

Is the family and domestic violence being perpetrated by a close relative of the employee?

In order for the first element to be satisfied—and therefore the employee to be entitled to FDV leave—the FDV must be perpetrated by a close relative of the employee.[49] As such, the breadth of circumstances in which FDV leave will be available is substantially impacted by the definition of a close relative, defined in proposed subsection 106B(3) as a person who:

• is a member of the employee’s immediate family (as defined in the FW Act) or
• is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Section 12 of the FW Act defines immediate family as:

• a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee or
• a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

A spouse is defined as including a former spouse and a de facto partner is defined in section 12 as a person:

• who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes) and
• includes a former de facto partner of the employee.[50] (emphasis added).

A number of submissions raised concerns about the above definition of close relative on the grounds that it is narrow in application and would exclude a range of persons frequently responsible for inflicting domestic violence.[51]

Whilst the Explanatory Memorandum states ‘a former de facto partner of an employee, whether living at the same residence as the employee or not, is still covered by the definition of close relative’[52] (emphasis added), a number of submissions argued that the definition of close relative would exclude current non-residential de facto partners.[53] This is because the definition of a de facto partner used in the FW Act is predicated on the person living with the employee. For example the LCA argued that the definition of close relative is:

... too narrow and that many deserving employees may not be entitled to the leave if, for example, the violence is perpetrated towards them by an aunt or uncle or niece or nephew. A further issue is for people who are living with another person who is perpetrating family or domestic violence against them. They may not fall within the scope of this Bill. Some couples may not meet the requirements of being in a de facto relationship, yet they may be in a relationship and living together. Alternately, a couple may be in a relationship but do not live together and they may not meet the requirements of being in a de facto relationship and as such would not be supported under this Bill. The definitions also appear to exclude those people who have experienced or are experiencing family violence perpetrated by a past intimate partner.[54] (emphasis added)

As a result, the LCA recommended the use of the broader terms ‘member of the family’ and ‘relative’ as defined in subsections 4(1AB) and 4(1AC) of the Family Law Act to overcome the above issues.[55]

Other stakeholders took another view. For example, the Australian Chamber of Commerce and Industry (ACCI) noted:

A “close relative” is defined as someone who is a member of a person’s “immediate family” (a term defined in s 12 of the FW Act) or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. This coverage is the same as provided in the award clause, however, under the award this composite range of family relationships is called “family members”, not “close relatives”. Unlike the term “immediate family member”, “family member” is not defined in the FW Act and to the best of the Australian Chamber’s understanding the undefined term “family member” is not used in any provision of the FW Act. The Chamber appreciates that some readers may consider the term “family member” to be broader than what the award clause is intending to describe, that is, “immediate family member” and those related under Aboriginal or Torres Strait Islander kinship rules. The Australian Chamber [considers] “close relative” better captures this composite group of relationships for the reader.[56]

Second element: does the employee need to do something to deal with the impact of the family and domestic violence?

The second element to the FDV leave entitlement (proposed paragraph 106B(1)(b)) is that the employee ‘needs to do something to deal with the impact of the family and domestic violence’. The note to proposed subsection 106B(1) provides a non-exhaustive list of examples of actions that could be covered by the second element:

• arranging for the safety of the employee or a close relative (including relocation)
• attending urgent court hearings or
• accessing police services.

An issue that arises from the second element is determining whether the employee ‘needs’ to do something to ‘deal with’ the impact of FDV. In this regard, the Queensland Government recommended that consideration be given to amending the Bill to include a more extensive non‑exhaustive list of reasons for which FDV leave may be accessed, modelled off subsection 52(4) of the Industrial Relations Act 2016 (QLD).[57] These include:

• recovering from an injury caused by the violence
• attending an appointment related to the violence, including an appointment:
  • to attend counselling
  • to obtain legal advice
  • for medical treatment or
  • to meet with police officers
• preparing for a court appearance related to the violence
• attending court for a proceeding related to the violence
• finding housing that is necessary because of the violence or
• organising child care or the education of a child that is necessary because of the violence.[58]

Similarly, the Victorian Hospitals’ Industrial Association (VHIA) recommended including more examples of type of actions covered by the second element in the proposed note 1 to proposed subsection 106B(1) to include ‘accessing family violence and legal support services’.[59]

In its 2011 Final Report, the ALRC considered the circumstances in which an NES-based entitlement to FDV leave should be available. Its recommendations largely reflect the submissions noted above.[60]

Issue: do court hearings have to be urgent?

Proposed note 1 to proposed subsection 106B(1) provides that an example of an action taken by an employee that would be covered by the second element is ‘attending urgent court hearings’. This wording is consistent with the Model Clause developed by the FWC.[61] A number of submissions raised concerns about this example and the use of the word ‘urgent’. The LCA recommended:

... the removal of the word ‘urgent’ in the proposed Note of subsection 106B(1) as it would be difficult for employers to determine which court hearings are urgent or non-urgent. For example, people affected by domestic and family violence may be required to attend matters including criminal matters, matters through the Family Court or Federal Circuit Court, domestic violence orders in the Magistrates’ Court or District Court, and other civil matters.[62]

Likewise the VHIA argued:

At Note 1, there is a reference to ‘urgent’ court hearings. In our view, court hearings – whether urgent or not – will satisfy the requirements of s. 106B(1) including that it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.[63]

The ALRC, in its 2011 Final Report, whilst recommending that FDV leave be accessible to employees for the purpose of attending court did not indicate that any such attendances be limited to ‘urgent’ court hearings.[64]

Third element: is it impractical for the employee to do that thing outside of their ordinary working hours?

The third element to the FDV leave entitlement (proposed paragraph 106B(1)(c)) is that ‘it is impractical’ for the employee to undertake the action covered by the second element outside of their ‘ordinary working hours’. This wording is consistent with the Model Clause developed by the FWC.[65]

However, concerns were raised about the third element. For example, the Uniting Church of Australia Synod of Victoria and Tasmania (UCA) noted:

The Synod is concerned that the leave is only available where it is impractical for the employee to undertake the action they need to in response to the family violence outside of their ordinary hours of work. The Synod would prefer to see this clause removed, as it will open up an area where uncaring employers may seek to argue the person being subjected to family violence should go to significant lengths to deal with actions needed in response to the family violence outside of their ordinary hours of work.[66] (emphasis added)

In this respect, Arthur Moses SC (President-elect of the LCA) noted:

Family and domestic violence leave is a fundamental aspect of workplace support for victims. It may be required to allow a victim to effectively deal with a number of different issues. For example, complex family law matters can involve multiple hearings over a period of months, and there may be requirements for parties to attend appointments with court-appointed family consultants, police prosecutors and lawyers. In addition, there may be more time required for medical appointments, finding alternate accommodation, relocation, psychologist appointments and attending to children's issues—this is not an exhaustive list. It is often impractical or impossible to attend to such matters outside of the ordinary hours of work.[67] (Emphasis added)

In its 2011 Final Report, the ALRC considered the circumstances in which an NES-based entitlement to FDV leave should be available. It did not recommend restricting the entitlements to only where it would be ‘impractical’ to take the required action to respond to the violence outside an employee’s ordinary working hours. Its recommendations are consistent with the submissions noted above.[68]

Evidence required to access the entitlement

Section 107 of the FW Act deals with the notice and evidence that an employee must give their employer in relation to taking certain types of leave. Currently subsection 107(2) provides that the relevant notice must be:

• given to the employer as soon as practicable (which may be a time after the leave has started) and
• must advise the employer of the period, or expected period, of the leave.

Subsection 107(3) in turn provides that an employee who gives their employer notice of taking leave must ‘if required by the employer’ provide evidence that would satisfy a reasonable person that the leave was taken for the appropriate and relevant reasons. Subsection 107(5) then allows a modern award or enterprise agreement to include evidence requirements in relation to certain types of leave including, for example, unpaid carer’s leave.

Item 6 inserts proposed paragraph 107(3)(d) which would extend the requirements discussed above to FDV leave. This would mean that if required by their employer, an employee would have to give evidence ‘that would satisfy a reasonable person’ that:

• they are experiencing FDV (the first element)
• they need to do something to deal with the impact of that FDV (the second element) and
• it is impractical for them to do that thing outside their normal working hours (the third element).

The Explanatory Memorandum notes:

Depending on the circumstances, such evidence may include a document issued by a police service, a court or a family violence support service, or a statutory declaration.[69]

However, the Bill does not propose to amend subsection 107(5).[70] This means that it will not be possible for a modern award or enterprise agreement to contain provisions dealing with what type of evidence can (or cannot) be provided to support a notice related to FDV leave—meaning it will remain a matter to be determined between the employer and employee.

What is the entitlement and how does it accrue?

Proposed subsection 106A(1) provides that the entitlement is to five days of unpaid FDV leave in a 12 month period. Proposed subsection 106A(4) provides that FDV leave can be taken as:

• a single continuous five day period
• separate periods of one or more days each or
• any separate periods to which the employee and employer agree, including periods of less than one day.

This is broadly consistent with the Model Clause set down by the FWC.[71] This is also consistent with the ALRC’s 2011 Final Report Recommendations.[72]

Proposed paragraph 106A(2)(b) provides that the entitlement to FDV leave ‘does not accumulate from year to year’. That is, the entitlement to FDV leave is available in full at the start of each 12 month period of the employee’s employment and hence an employee gains access to the full entitlement at the beginning of their employment. In turn, the entitlement resets to the full five days with each 12 month period of employment.[73] This is broadly consistent with the Model Clause set down by the FWC.[74]

Issue: should the Bill follow the Fair Work Commission’s Model Clause?

As noted above, when the FWC exercises its powers in relation to modern awards, it must do so in a manner consistent with the modern award objectives noted earlier in this digest, which includes ensuring that modern awards, together with the NES, ‘provide a fair and relevant minimum safety net of terms and conditions’.[75] However, section 138 of the FW Act imposes a limitation on the types of terms that can be included in a Modern Award:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective. (emphasis added).

A number of submissions argued that the Parliament—when amending the NES—is not constrained in such a manner, and hence the Bill does not need to follow, or be consistent with, the FWC’s Model Clause.[76]

Issue: should the entitlement accrue?

The ACCI noted it supported the system proposed by the Bill whereby:

... at the anniversary of the employee’s engagement her or his leave balance refreshes to 5 days and it does so each subsequent anniversary.[77]

In contrast however, the Employment Law Centre of WA argued:

...FDV leave should be cumulative. ELC appreciates in this regard that the leave is provided as an up-front entitlement. However, ELC is of the view that this leave should be cumulative particularly if the Bill ultimately provides for only 5 days of leave.[78]

Whilst not directly addressing the issue of accrual, the LCA noted that survivors of domestic violence often ‘need to access leave beyond the immediate crisis’ and therefore suggested:

... the Bill could benefit by the clarification of subsection 106A(1) to ensure that it is clear that an employee can access the 5 days unpaid leave in each 12 month period, for the same instance of family violence in subsequent years.[79] (emphasis added).

Issue: paid or unpaid?

Whether FDV leave should be paid or unpaid leave is a key point of contention in the current Australian context. Under the Bill, FDV leave will be unpaid—this is consistent with the FWC decision.[80] The issue of whether FDV leave should be paid or unpaid was examined by the ALRC, in the FWC proceedings and is addressed in submissions to the Senate Education and Employment Legislation Committee inquiry into the Bill. The ALRC, in its 2011 Final Report noted:

There are strong arguments in favour of the need for paid family violence leave, or a combination of paid and unpaid leave, to avoid provision of a ‘hollow’ entitlement, risk further disadvantaging victims of family violence, or to fail to achieve the objects underlying its introduction... In light of the focus of this part of the Report on ensuring the economic security and independence of employees experiencing family violence, and stakeholder concerns about the possible compounding effect unpaid family violence leave may have, the ALRC has formed the view that any entitlement to family violence leave should provide for paid leave and, possibly, also additional unpaid leave.[81]

Ultimately, the ALRC recommended that the Australian Government consider amending the NES ‘with a view to including provision for additional paid family violence leave’.[82]

The FWC deferred consideration of the merits of introducing an award entitlement to paid FDV leave in the future, rather than rejecting such a prospect outright, stating:

We propose to revisit this issue in June 2021, after the model term has been in operation for three years. At that time we will consider... whether provisions should be made for paid family and domestic violence leave.[83]

In terms of the submissions to the Senate Education and Employment Legislation Committee inquiry into the Bill, many industry groups argued that FDV leave should be unpaid, while trade unions and women’s lobby groups advocated for paid FDV leave. The three state governments that provided submissions to the inquiry (Queensland, Victoria and Western Australia) also advocated for FDV leave to be paid.[84]

Entitlement should be unpaid

The arguments in favour of providing unpaid FDV leave focus on the cost to employers, particularly small business, of providing paid FDV leave. For example, the National Framers Federation (NFF) has stated:

... the NFF cannot support changes which would require employers to provide paid leave. The NFF is unwilling to support such changes primarily due to the increases in operating costs (without demonstrated productivity gains) which it could impose on farmers. ... These are small businesses, ‘price takers’ who operate on very tight margins with minimum cash flow and limited capacity to find replacement workers on short notice. They cannot afford any additional operational expenses, and the cost of paid leave cannot be absorbed or easily managed. For that reason an entitlement to a new form of paid leave must be resisted.[85]

Stakeholders who advocate for unpaid FDV leave also argue that existing paid leave entitlements, such as annual and personal leave, adequately provide for the needs of employees who require time away from work to deal with matters relating to FDV.[86] Some have also raised concerns about consistency between entitlements in Awards and the NES—they argue that FDV leave entitlements under the NES should be the same as those in the Awards, in order to avoid confusion amongst employers and employees.[87]

Entitlement should be paid

The arguments in support of FDV leave being paid focus on the importance of economic security to women and children who are the victims of abuse. They point to financial insecurity being a significant barrier to people attempting to leave a violent relationship, and argue that failing to provide paid FDV leave adds to this economic insecurity by forcing victims of FDV to forgo wages in order to pursue, for example, counselling, a legal separation or a court case.[88] The ACTU describes five days of unpaid FDV leave as ‘manifestly’ failing ‘to provide sufficient time or financial support to effectively assist employees to escape and recover from dangerous situations’ and argued:

Until 10 days paid family and domestic violence leave is a universal minimum employment standard, vulnerable employees will still be forced to make an unacceptable choice between their safety and their pay check.[89]

Proponents of paid FDV leave also reject the argument that paid FDV leave would be an unreasonable burden on employers, pointing to research indicating that only a small number of employees would be likely to utilise it. In 2016 the Centre for Future Work at the Australia Institute conducted research into the economic impacts of introducing an entitlement to ten days of paid FDV leave. It used data on the incidence of FDV and its impact on work attendance, along with evidence from employers with existing FDV leave provisions in place, to model the likely utilisation of FDV leave. The analysis concluded that around 1.5 per cent of female and 0.3 per cent of male employees would be likely to access FDV leave each year.[90] It further estimated that, assuming an entitlement of ten days of paid FDV leave, the cost to employers of wage pay outs would be modest, and likely to be almost completely offset by benefits such as improved productivity and decreased turnover.[91]

The ACTU, in its submission to the inquiry into the Bill, provided analysis of the take up rates of paid FDV leave amongst public sector employees in Western Australia and Victoria, arguing that usage rates were relatively low, and therefore not a significant burden on employers. For example, it found that in the one year since the introduction of paid FDV leave for public sector employees in Victoria, it has been utilised by just 0.02 per cent of staff.[92]

Issue: appropriate number of days for the entitlement

As noted above, the Bill proposes that the entitlement to FDV leave will be five days in a 12 month period.[93] As with whether FDV leave should be paid or unpaid, the appropriate number of days of an FDV leave entitlement was previously considered by the ALRC and FWC and is a key issue in regards to the current Bill.

The ALRC stopped short of recommending a specific number of days for any NES-provided FDV leave entitlement, but noted:

• whilst many stakeholders ‘submitted that 20 days of paid leave would be appropriate’ such a period may ‘not be appropriate as a statutory minimum’ and
• an alternative would be an entitlement of up to two days of FDV leave per occasion of FDV, but ‘in circumstances of ongoing family violence’ such an entitlement ‘might result in an employee being entitled to a potentially unlimited amount of leave’ and may also ‘impose a significant administrative burden on employers’.[94]

The FWC deferred consideration of whether to provide paid FDV leave to employees covered by modern awards, and if so, how many days, until June 2021.[95] It did, however, reject an application that unpaid FDV leave be available on an uncapped, per occasion basis.[96] Instead, the FWC settled on an entitlement to five days of unpaid FDV leave, with a review set down after the entitlement had been operating for three years.[97]

In relation to the Bill—which also proposes an FDV entitlement of five days per 12 month period—stakeholders are generally divided along the same lines as in relation to the question of pay, with industry and employer groups arguing that five days is sufficient, and unions, women’s groups and other stakeholders arguing for ten days.

Entitlement should be five days

The arguments in favour of the legislated entitlement being set at five days are similar to those in favour of FDV leave being unpaid—that more than five days of FDV leave would be an unreasonable impost on employers, and that consistency with the provisions of Awards is important to avoid confusion.[98] They also argue that five days of FDV leave is sufficient, pointing to evidence that had been presented to the FWC suggesting that the average period of leave taken by employees experiencing FDV is two to three days.[99]

Entitlement should be ten days

Stakeholders arguing for an entitlement to ten days of FDV leave claim that, while five days annually may be sufficient in some circumstances, for many victims of FDV it will not be. The Victorian Government, in arguing for a minimum standard of ten days, presented the Senate inquiry into the Bill with analysis of usage of FDV leave entitlements available to public sector employees in Victoria which show that the average amount of FDV leave taken by individuals ranges from five to eleven days.[100]

Several stakeholders also point to the fact that among private sector employers offering FDV leave, ten days is common. The ACTU states:

Evidence provided to the Commission during the Modern Award test case shows that 10 days is an industrial norm among the many workplaces which already provide access to paid family and domestic violence leave. For example, the evidence of Debra Eckersley of Price Waterhouse Coopers was that their decision to provide 10 days leave was informed by their own research which had revealed a ‘common standard’ of 10 days, as well as the advice of experts in the field of family and domestic violence.[101]

The LCA agrees that ten days of (unpaid) FDV leave ‘could be considered best practice’.[102]

Issue: what is a ‘day’ for the purposes of the entitlement?

Proposed section 106E provides that what constitutes a ‘day’ of FDV leave is taken to be the same as what constitutes a ‘day’ of leave for the purposes of pre-adoption leave (in section 85), unpaid carer’s leave (in Subdivision B of Division 7) and compassionate leave (in Subdivision C of Division 7) of the FW Act. As such, a ‘day’ of FDV leave encompasses a day which the employee would be required to attend work.[103]

In turn, proposed paragraph 106A(4)(c) will have the practical effect of allowing FDV leave to be taken for periods of less than a day (if agreed with the employer) and/or taken as separate periods.[104]

Issue: overlap with other types of leave

Some stakeholders raised concerns about the interaction between the entitlement to FDV leave and other forms of leave under the FW Act. For example, the Australian Public Service Commission argued:

... s106B provides reasons for taking unpaid Family and Domestic Violence Leave. There could be confusion as to where an employee is entitled to take available paid personal/carer's leave in preference to leave under 106B. This is particularly relevant where leave is required for an unexpected emergency affecting a family member as per s97(b)(ii) of the Fair Work Act 2009. It may be useful for further clarification to be provided.[105] (emphasis added)

The VHIA noted that existing paid personal/carers’ leave entitlements allow employees to be absent not only due to their personal illness or injury but also where a member of the employee’s immediate family suffers from an injury or unexpected emergency requiring care or support.[106] As a result, the VHIA argued:

Some (though not all) circumstances involving family violence will be an ‘unexpected emergency’. Accordingly, an employee can access personal leave for an unexpected emergency affecting a member of the employee’s immediate family or household, but not one affecting the employee themselves. This results in a ‘gap’ where the employee has a greater right to take paid leave to support someone else experiencing family violence than if they’re experiencing an unexpected emergency arising from family violence themselves.[107]

The VHIA argued that an unpaid FDV leave entitlement would result in it being ‘easier for an employee to access paid leave to support someone else’ experiencing FDV in the case of an unexpected emergency ‘than if the employee is experiencing family violence themselves’.[108]

As such, the VHIA recommended that consideration should be given as to how the FDV leave entitlement may interact with other paid leave entitlements. For example, the VHIA noted that:

• in the case of parental leave, paid and unpaid leave can be taken concurrently and
• section 88 of the FW Act allows employees to take paid annual leave for a period agreed between an employee and his or her employer and that an employer must not ‘unreasonably refuse to agree’ to such a request.

As a result, the VHIA recommended that the FDV leave entitlement also be identified as a circumstance where an employer must agree to allow the employee to also access paid annual leave, if requested.[109]

Issue: interaction with flexible work arrangement requests

Currently section 65 of the FW Act entitles certain employees to request a change in their working arrangements because of their circumstances. This is referred to as ‘flexible working arrangements’.

Types of requests that can be made include changes to hours of work, patterns of work and the location of work.[110] The types of circumstances that can underpin a request for flexible working arrangements are set out in subsection 65(1A) and include where:

(e)   the employee is experiencing violence from a member of the employee’s family;

(f)    the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.[111]

Employers may only refuse a request on ‘reasonable business grounds’ and if refused, a written response provided to the employee must include details of the reasons for the refusal.[112] Examples of what constitutes ‘reasonable business grounds’ are set out in subsection 65(5A).

The Employment Law Centre of WA (Inc.) (ELCWA) drew attention to the difference in drafting between paragraph 65(1A)(e) (set out above) and the definition of FDV in proposed subsection 106B(2) and suggested ‘the different wording introduces an inconsistency in language and potential ambiguity to the definition of FDV in section 106B of the Bill’ and hence recommended:

... section 65(1A)(e) of the Fair Work Act be amended to provide a relevant circumstance is where “the employee is experiencing family and domestic violence” as defined by section 106B.[113]

Confidentiality and work health and safety obligations

Proposed section 106C deals with the confidentiality of information obtained by an employer relating to an employee’s notice given (or evidence provided under section 107 of the FW Act) for the taking of FDV leave. The AHRC noted:

Research has shown that concerns about confidentiality appear to be key barriers in using family and domestic violence leave clauses. To overcome this issue, training and support must be provided to all employees—in particular, those who are likely to have an employee disclose circumstances related to family and domestic violence to them.[114]

Proposed subsection 106C(1) provides that employers are required to take steps to ensure information concerning any notice or evidence an employee has given to them relating to their FDV leave is treated confidentially, as far as it is reasonably practicable to do so. Proposed subsection 106C(2) contains two exceptions to this confidentiality obligation, namely that an employer can disclose 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.

A number of submissions raised concerns about the confidentiality obligation. For example, the Australian Nursing & Midwifery Federation (ANMF) noted:

Confidentiality is the key to those experiencing family and domestic violence having the confidence to seek support in the workplace.[115]

The ANMF, Queensland Council of Unions (QCU) and ACTU all recommended that the Bill be amended to include an explanatory note similar to that found in the Model Clause, to provide guidance to employers regarding their confidentiality obligation.[116] Other submissions recommended expanding the obligation to, for example, include rosters and payslips.[117]

Whilst most employer submissions however expressed satisfaction with the Bill as drafted, some expressed concerns. For example, the National Retail Association (NRA) noted that as work health and safety legislation requires employers to ensure the safety of workplaces for all persons, the confidentiality obligation created ‘competing obligations for employers’.[118] The Australian Industry Group (AIG) provided some useful examples of such competing obligations:

... there are often sound reasons why certain personnel in a business need access to information concerning the family and domestic violence leave that an employee has applied for or taken. For example, managers and payroll staff involved in the approval and administration of leave entitlements would typically need access to this information.

Also, circumstances involving family and domestic violence can create work health and safety risks within a workplace that an employer has a legal obligation to address. Security, reception and/or other staff may need to be provided with certain information to address risks to an employee who has applied for or taken family and domestic violence leave and to other employees (e.g. providing the identity of an employee’s violent partner to security staff if there is the risk of the person visiting the workplace, or providing the telephone number of a violent partner to the receptionist if the person is constantly calling to harass the employee).

It would be unfair to expose a business and managers in the business to hefty penalties for breaching the law because the business’s payroll system gives relevant managers and payroll staff access to leave records. It would also not be reasonable to require businesses to incur the cost of modifying their payroll software or to require them to implement new leave approval systems as a result of the implementation of the Bill.[119] (Emphasis added)

Ultimately the AIG concluded that ‘the confidentiality provisions in the Bill’ were an appropriate measure.[120] The Senate Standing Committee on Education and Employment in its Report on the Bill likewise concluded:

The committee heard that the FWC had considered the question of confidentiality in detail before handing down its decision, and that there are practical considerations which employers have to develop strategies for handling... The committee noted that the FWC had stopped short of imposing a blanket confidentiality obligation due to the nuances involved, and that the confidentiality provision contained within the bill reflects terms very similar to those agreed to by ACCI, Ai Group and the ACTU.[121]

The Dissenting Report by the Opposition and Australian Greens Senators did not indicate any concerns about the confidentiality obligation, or make any recommendations contrary to the above.

How will the entitlement impact employers?

FDV leave as proposed in this Bill will operate as a workplace entitlement, similar to paid annual leave and personal/carer’s leave entitlements, except that the FDV leave will be unpaid. This means that — as is the case with other forms of unpaid leave—the cost to employers will consist only of:

• productivity losses flowing from the employees’ time away from the workplace and
• costs associated with replacing/covering the employee (if replaced) whilst on FDV leave.[122]

Some stakeholders argue that FDV leave should be provided through the welfare system, rather than be the responsibility of employers.[123] However, as this Bill will provide for unpaid FDV leave (reflecting the decision of the FWC), the question of whether the wage cost of the absent employee should be borne by employers or the government is moot in the current context.

While submissions to the Senate inquiry into the Bill were supportive of legislating for FDV leave, some pointed out that there will still be a cost to employers, even if the FDV leave is unpaid. For example, the NRA told the inquiry that the cost for its members of replacing workers on unpaid FDV leave could be significant, as replacement workers (such as casuals) may be required to be paid at a higher rate than the absent worker.[124] Further, it was also argued that the impact and cost of FDV leave-related absences may have a more deleterious impact on smaller businesses (particularly those in regional and rural Australia) compared to larger employers.[125]

Others submitted that the costs to employers will be negligible, and will be offset by improvements in staff productivity. Many stakeholders argue that this would be the case even if the FDV leave entitlement was paid, rather than unpaid. For example, the ACTU points to research conducted in New Zealand which estimated that an average of $3,371 in production-related costs annually are avoided for every woman whose experience of violence was prevented as a result of the workplace protections.[126] Several stakeholders also point to the fact that many employers are voluntarily providing staff with FDV leave (in many cases paid leave) as evidence that the benefits to employers outweigh the costs.[127]

Are employees protected from discrimination because they used the entitlement?

The FW Act protects employees from ‘adverse action’ (including dismissal) where they exercise (or seek to exercise) a ‘workplace right’. A number of submissions recommended amending the FW Act to provide that taking (or seeking to take) FDV is a workplace right. This, it is argued, would protect employees from suffering discrimination or other adverse action as a result of taking (or seeking to take) FDV leave.[128]

In contrast, in the context of balancing competing obligations to ensure the safety of all persons at a workplace under work health and safety (WHS) legislation and the measures proposed by the Bill, the NRA recommended that relevant amendments to regulations be made to permit employers to take ‘adverse action’ against an employee taking or seeking to take FDV leave if such action was taken for the purpose of complying with their WHS obligations.[129] The NRA provided the following example to support its recommendation:

The obligation that employers may have to reduce the risk of family and domestic violence in the workplace may, in some cases, amount to a breach of these protections. For example, changing an employee’s roster pattern to reduce the interaction they have with another employee may amount to an adverse or discriminatory action, despite the fact that the employer was obligated to make the change.[130]

It appears that the above example is predicated on a situation where one employee is perpetrating family and domestic violence on another employee.

Other provisions

Commencement of entitlement to family and domestic violence leave

Proposed clause 39 of Schedule 1 of the FW Act is a transitional provision that deal with how an employee who is employed at the time the new FDV entitlement commences gains the benefit of the entitlement from the commencement date.

The effect of proposed clause 39 is that employees employed at the time the FDV entitlement commences will gain the full benefit of the five days of unpaid FDV leave from the date of commencement, rather than having to wait until the anniversary of the start of their employment as per proposed paragraph 106A(2)(a).

However, proposed subclause 39(1) provides that following that initial bestowal of the FDV leave entitlement at the time the amendments commence, the five days of FDV leave entitlement will then reset on the day of the anniversary of when an employee’s employment started. The Explanatory Memorandum provides the following example:

... an employee who started employment with their employer on 10 April 2018 will gain the full five day entitlement upon commencement of the new provisions, and that entitlement will thereafter reset on 10 April each year of their employment with that employer.[131]

Proposed subclause 39(2) deals with casual and fixed-term employees. It provides that if an employee is employed by a particular employer:

• as a casual employee or
• 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.

As noted in the Explanatory Memorandum:

The effect of subclause 39(2) is that the transitional application arrangement provided for in subclause 39(1) applies to casual employees and employees who are employed for a specified period of time, for a specified task or for the duration of a specified season as though the start of their first employment with a particular employer is taken to be the start of the employee’s employment with that employer from which time the entitlement resets. This is the same approach taken for these employees as in subsection 106A(3).[132]

The ACCI raised concerns about the interaction between the different commencement dates of FDV leave entitlements under the FWC decision and the Bill and recommended:

The commencement of the new NES entitlement (and the initial 5 day entitlement under the NES), coincide with the start date of an existing entitlement which is the same or substantially so, or commence on the first pay period to commence on or after 1 August 2018.[133]

Dealing with the interaction between the entitlement and enterprise agreements

Section 55 of the FW Act provides (amongst other things) that a modern award or enterprise agreement:

• must not exclude the NES, or any provision of the NES
• may include terms that are ancillary or incidental to the operation of the NES or supplement the NES, but only to the extent that those terms are not detrimental to an employee in any respect when compared to the NES (subsection 55(4)) and
• in the case of an enterprise agreement, may include terms that have the same (or substantially the same) effect as provisions of the NES, whether or not ancillary or supplementary terms are included as referred to in subsection 55(4).[134]

Subsection 55(6) then provides that where an enterprise agreement or award contains a term that is ancillary, supplementary or incidental to an NES entitlement then to the extent that the term of the enterprise agreement or modern award gives an employee an entitlement that is the same as an NES entitlement:

• those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit and
• the provisions of the NES relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Power to amend enterprise agreements

Proposed clause 40 of Schedule 1 of the FW Act provides a mechanism for employers, employees or employee organisations covered by an enterprise agreement to resolve any uncertainties or difficulties arising from the interaction of a term of an enterprise agreement and the new FDV leave entitlement in the NES. Proposed subclause 40(1) specifically provides that the provision will apply to enterprise agreements made before the commencement of the new FDV leave entitlement.

To allow such uncertainties to be resolved, proposed subclause 40(1) provides that an employer, employee or employee organisation (for example, a trade union) covered by an enterprise agreement that was made before the commencement of the new FDV leave entitlement can make an application for the FWC to make a determination varying the enterprise agreement to:

• resolve an uncertainty or difficulty relating to the interaction between the enterprise agreement and:
  • the FDV leave provisions
  • the evidence requirements under section 107 of the FW Act or
• otherwise ensure the enterprise agreement interacts and operates effectively with the unpaid FDV leave provisions.

As noted in the Explanatory Memorandum, proposed clause 40 is necessary as:

... existing enterprise agreements may already provide employees with different forms of leave or an analogous entitlement that is accessible when an employee is experiencing family and domestic violence. Terms in existing enterprise agreements may, for example, use different definitions or operate differently to the new unpaid family and domestic violence leave entitlement, and therefore it may not be clear how the terms of those agreements will interact with the new entitlement. New clause 40 provides a mechanism for applications to be made to the Commission to resolve these questions.[135]

Issues raised by stakeholders

Despite the existence of proposed clause 40, some stakeholders raised concerns about the interaction between existing FDV leave entitlements under both existing and potential future enterprise agreements and modern awards.

For example, the ACCI raised concerns about imposing the new FDV leave entitlement onto existing enterprise agreements, stating:

It is a significant step to impose new rules which may in some cases be contradictory onto an enterprise agreement which was properly negotiated between the parties and approved by the Commission consistently with the legislative requirements at the time. It is also not usual to impose new amendments on enterprise agreements in this way. It is usual and appropriate that new rules are imposed on future agreements and their negotiations – not on existing agreements.[136] (emphasis added).

The ACCI then noted that its ‘preferred position is that new NES entitlements should not impact existing agreements without transition’.[137] However, the ACCI noted it:

... accepts that the imposition of the new NES provisions on existing agreements supports the need for [proposed clause] 40 and that the capacity to give retrospective operation to a determination provides protection from unknowing breach. It is appropriate that applications for determinations are confined to persons covered by the enterprise agreement.[138]

Whilst the NRA raised similar concerns about the issues raised between overlapping FDV entitlements under the Bill, modern awards and enterprise agreements it provided very different suggested solutions.

First, the NRA recommended that section 55 of the FW Act be amended to allow both modern awards and enterprise agreements to contain terms that have the same (or substantially the same) effect as provisions of the NES, whether or not ancillary or supplementary terms are included as referred to in subsection 55(4) (currently this only applies to enterprise agreements).[139]

Second, the NRA recommended that subsection 61(1) of the FW Act be amended to provide that Part 2-2 of the FW Act (that is, the NES) sets minimum standards that apply to the employment of employees which cannot be displaced, even if a modern award or enterprise agreement includes terms that have the same (or substantially the same) effect as provisions of the NES (currently this only applies to enterprise agreements).[140]

The NRA argued that those amendments would:

... remove any ambiguity surrounding the possible unintentional double benefit of both the entitlement in the modern awards and the NES, as well as any future ambiguity that may arise from further variations to modern awards and the NES.[141]

Despite those concerns, it appears that proposed clause 40 will enable the FWC to resolve such uncertainties—at least in relation to the interaction between the FDV leave entitlement proposed by the Bill and any similar entitlements under existing enterprise agreements.

Concluding comments

Whilst the need to provide employees with access to some form of FDV leave appears to have broad support amongst stakeholders and the Parliament, the key unresolved issues are whether FDV leave should be paid or unpaid, and what the quantum of the leave entitlement should be.

The Bill reflects the FWC’s current position – that FDV should be unpaid at this time. Whilst the FWC decision has deferred consideration of that issue until 2021, should the Bill be passed in its current form it would appear likely to enable a more detailed set of data about the uptake of FDV leave and its impact on employees and employers to be collected, should that issue be revisited by Parliament in the future.