[2019] FWCFB 5144

FAIR WORK COMMISSION

DECISION

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)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 25 JULY 2019

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 concluded that:

‘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 (Cth) (the Amendment Act) amended the Fair Work Act 2009 (Cth) (the 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 and the NES entitlement are set out respectively at Attachment A and Attachment B of our Statement of 11 February 2019 3 (the February Statement).

[5] As stated in the Explanatory Memorandum, 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), but 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. 4

[6] In the February Statement we expressed the view that the model term and the effect of the NES entitlement were substantially the same and noted that 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.’ 5

[7] The 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 that approach, we expressed the 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.’

[8] In the February Statement we invited submissions by any party who objected to our provisional views.

[9] The Australian Council of Trade Unions (ACTU) lodged a submission dated 14 March 2019 6 objecting to the proposed deletion of the model term, on the following grounds:

(i) the NES entitlement has no equivalent to the note under cl.X.7 which deals with confidentiality;

(ii) the NES entitlement has no equivalent to the note under cl.X.6 which deals with evidence;

(iii) the coverage of de facto partners is narrower in the NES entitlement than the model term; and

(iv) the model term has no equivalent to s.106E of the Act.

[10] In the further Statement of 10 May 2019, 7 the President invited submissions in response to the ACTU’s submission. Submissions have been received from Ai Group8 and the Australian Chamber of Commerce and Industry9 (ACCI).

[11] Ai Group and ACCI support our provisional view that the model term should be replaced with a reference to the NES entitlement. Ai Group submits that: the differences between the model term and NES entitlement are ‘relatively minor and it is not clear that they give rise to a substantively different entitlement’, and to maintain ‘separate and subtly different provisions dealing with essentially the same subject matter’ in awards and the NES ‘is not desirable or warranted and is certainly not necessary’ in terms of s.138 of the Act. 10 Similarly, ACCI submits that the differences between the model term and the NES ‘do not appear to be substantive so as to warrant the maintenance of the model term in modern awards.’11

[12] ACCI further submits that: should the Commission ‘consider that slight technical differences between the model term and the NES entitlement are worth retaining’, ACCI would endorse the model term being amended to remove duplication of the NES entitlement so that it ‘merely refers to the NES entitlement and then specifically identifies matters that are different to the underlying NES entitlement’, and that this approach would be consistent with s.138 of the Act. 12 The ACTU submits that it would be open to the Commission to delete the aspects of the model term that replicate the NES entitlement and retain the aspects that supplement the NES entitlement, but that this would result in confusion and be inconsistent with ensuring a simple, easy to understand modern award system as set out in s.134(g) of the Act.13

[13] For the reasons which follow we confirm our provisional views that the model term is to be deleted from the exposure drafts and replaced with a reference to the NES entitlement, with the model term remaining in modern awards until they are replaced by the exposure drafts. We have also decided that the reference to the NES entitlement is to be expanded by the addition of two notes, to read as follows:

‘X. Unpaid family and domestic violence leave

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

Note 1: 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.

Note 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.’

[14] The Australian Government Industry Award 2016 has not been included in the exposure draft process during the 4 yearly review of modern awards. In a decision on 28 February 2019 14, a Full Bench determined that it was one of the 33 awards that could not be further dealt with as part of the 4 yearly review following the commencement of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth). In that decision, the Full Bench stated that the 33 awards would be reviewed on the Commission’s own motion in the second half of 2019. The model term will remain in the Australian Government Industry Award 2016 until this review process commences.

[15] We now turn to the grounds advanced by the ACTU in its objection to the proposed deletion of the model term.

[16] We consider the submissions of the parties in respect of the ACTU’s 4 specific grounds of objection, under separate headings below.

(i) The NES entitlement has no equivalent to the note under cl.X.7 of the model term

[17] The ACTU notes that both cl.X.7 of the model term and s.106C of the NES entitlement require employers to ‘take steps to ensure that information … or evidence an employee has provided … is treated confidentially, as far as it is reasonably practicable to do so.’ However, the NES entitlement has no equivalent to the note under cl.X.7 of the model term which states:

‘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.’

[18] The note under s.106C of the NES entitlement is:

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

[19] The ACTU submits that in the proceedings leading to the formulation of the model term, the Commission was presented with uncontested evidence that confidentiality is essential to the effective operation of family and domestic violence leave, both to protect the privacy of employees and to ensure their physical safety. 15 The ACTU further submits that during the proceedings, ‘concerns were raised by employer representatives about the capacity of some employers, particularly those with limited resources, to understand and comply with the confidentiality obligation.’16 The ACTU characterises the note under cl.X.7 of the model term as:

‘a compromise position included in the [model term] for the purpose of providing important and much needed guidance and clarity to employers on the reasons that confidentiality is important, and to offer practical advice on how to minimise the prospect of mishandling sensitive personal information.’ 17

[20] Both Ai Group and ACCI point out that this note and the note under cl.X6 does not give rise to a substantive difference in entitlements. 18 Ai Group accepts that these notes ‘may provide guidance to employees and employers,’ but submits the imperative for such assistance is reduced because similar guidance is provided in the Explanatory Memorandum for the Bill that became the Amendment Act and also in guidance materials published by the Fair Work Ombudsman.19 In response, the ACTU submits that it would be ‘extremely rare for an employer or employee to consult an [Explanatory Memorandum] to obtain practical guidance’ and that the omission of the 2 notes from the NES entitlement means that, for all practical purposes, their guidance is not accessible to employers and employees.20 Both Ai Group and ACCI submit that any continuing utility of the two notes does not warrant retaining the model term.21 ACCI further submits that ‘it is not the role of modern awards to act as explanatory documents for NES entitlements.’22

[21] We agree with Ai Group and ACCI that the continuing utility of the notes under cls.X.7 and X.6 of the model term does not warrant retaining the model term. We also agree with the ACTU’s characterisation of the note under cl.X.7—this note provides important guidance to employers in respect of an essential element of the effective operation of family and domestic violence leave.

[22] We propose to retain the note. We are satisfied that the retention of the note is necessary to ensure that modern awards achieve the modern awards objective. Accordingly, the note under cl.X.7 of the model term will be included in the reference to the NES entitlement that will replace the model term.

(ii) The NES entitlement has no equivalent to the note under cl.X.6 of the model term

[23] The ACTU notes that both cl.X.6(b) and s.107(3)(d) of the Act provide that an employee must ‘if required by the employer, give the employer evidence that would satisfy a reasonable person’ that the leave is taken for the purpose of dealing with family and domestic violence. However, the NES entitlement has no equivalent to the note under cl.X.6 of the model term which states:

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

[24] The ACTU submits that, similarly to the model term’s note on confidentiality, the note under cl.X.6 ‘was included as a compromise position to provide guidance to employees and employers on an important aspect of the entitlement likely to generate queries.’ 23 Ai Group’s and ACCI’s views on this note and the note under cl.X.7 were outlined above.

[25] We concluded above that the continuing utility of the notes under cl.X.7 and X.6 of the model term does not warrant retaining the model term, but, again, we also concur with the ACTU that the note under cl.X.6 provides important practical guidance to employers and employees on an essential element of the effective operation of family and domestic violence leave. In particular, it is certainly not self-evident that provision by an employee of a statutory declaration may satisfy the evidence requirement under s.107(3)(d) of the Act.

[26] We are satisfied that the retention of the substance of the note is necessary to ensure that modern awards achieve the modern awards objective. Accordingly, a note to the same effect as the note under cl.X.6 of the model term will be included in the reference to the NES entitlement that will replace the model term (see [13] above).

(iii) The coverage of de facto partners in the NES entitlement and the model term

[27] The NES entitlement applies to employees experiencing ‘violent, threatening or other abusive behaviour by a close relative’ of the employee [emphasis added] (ss.106B(1) and (2) of the Act). Relevantly for present purposes, a ‘close relative’ is defined as including ‘a member of the employee’s immediate family’ and ‘immediate family’ is in turn defined as including a ‘de facto partner’ of the employee (s.106B(3) and s.12). A ‘de facto partner’ is defined in s.12 of the Act:

‘de facto partner of a national system employee:

(a) means 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

(b) includes a former de facto partner of the employee.’ [Emphasis added]

[28] As the definition of ‘de facto partner’ in s.12 requires co-habitation, the NES entitlement will not apply to an employee experiencing abusive behaviour by a person with whom the employee has never lived. The ACTU submits that ‘the NES entitlement excludes non-resident, current de facto partners, while the model term does not.’ 24

[29] Contrary to the view expressed by the ACTU, 25 it appears to us that the NES entitlement will apply where the abusive behaviour is by a person with whom the employee is in a current relationship and with whom the employee had previously lived as a couple on a genuine domestic basis (as the person would fall under the definition of ‘former de facto partner’), but for the reasons that follow it is not necessary for us to determine this point.

[30] The model term applies to employees experiencing ‘violent, threatening or other abusive behaviour by a family member’ of the employee [emphasis added] (cl.X.2(a)). Relevantly, a ‘family member’ is defined as including a ‘de facto partner’ of the employee and a ‘de facto partner’ includes a former de facto partner (cls.X.2(a) and (b)). The term ‘de facto partner’ is not further defined in the model term.

[31] Ai Group submits that the model term does not provide a comprehensive definition of ‘de facto partner’ and there is ‘no apparent intent’ for the model term to adopt a definition of ‘de facto partner’ different to that in the Act. 26 ACCI similarly submits that it is not clear that, using the ACTU’s description, ‘current de facto partners’ who have never lived together, would fall within the meaning of ‘de facto’ under either the model term or the NES entitlement.27 Further, Ai Group and ACCI submit that there should be no difference in the family and domestic violence leave entitlements of an employee based on whether they are covered by the model term or only by the NES entitlement.28

[32] As recorded in the Decision of the Full Bench of 26 March 2018 29 (the March 2018 Decision) the definition of ‘family member’ in the model term was one of the elements of the model term that was agreed between the parties in the course of conferences in October 201730. Consequently, the definition was not directly addressed in that Decision. However, in discussing the evidence about family and domestic violence in the March 2018 Decision the Full Bench noted the distinction between the terms ‘partner’ and ‘intimate partner’ as used in the Personal Safety Survey (PSS) conducted by the Australian Bureau of Statistics:

‘[77] The most relevant data for our purposes is the statistics in relation to partner violence. Partner violence refers to any incident of sexual assault, sexual threat, physical assault or physical threat by a current and/or previous partner. The term ‘partner’ in the PSS is used to describe a person the survey respondent lives with, or lived with at some point, in a married or de facto relationship. It includes a partner the survey respondent is living with at the time of experiencing violence; or a partner the survey respondent is no longer living with at the time of experiencing violence. The PSS also uses the term ‘intimate partner’ to describe a ‘partner’ as defined above or a boyfriend/girlfriend or date or an ex-boyfriend/ex-girlfriend.’ 31 [Emphasis added]

[33] So far as relevant for present purposes, the Macquarie Dictionary online defines ‘de facto’ as:

‘3. of or relating to a situation in which two people live together in the relation of husband and wife, although not legally married: a de facto relationship.

–noun 4. Also de facto wife. A woman who lives with a man as his wife, but is not married to him.

5. Also, de facto husband. A man who lives with a woman as her husband, but is not married to her.

[Latin: from the fact]’

[34] A modern award is an instrument falling under s.46 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 32 (the AI Act). Consequently, except so far as the contrary intention appears, expressions used in a modern award have the same meaning as in the Act (AI Act s.46(1)(b)).

[35] The definition of ‘de facto partner’ in s.12 of the Act requires co-habitation and we see no contrary intention in the model term or the awards in which it presently appears. Further, the definition in s.12 is consistent with the definition of ‘partner’ put forward in the March 2018 Decision and with the Macquarie Dictionary definition.

[36] It follows, in our view, that the coverage of de facto partners is the same in the NES entitlement and the model term. The lack of a leave entitlement for employees experiencing abusive behaviour by an intimate partner with whom they have never co-habited, is a matter that could be raised in the June 2021 review which is discussed further below.

(iv) The model term has no equivalent to s.106E of the Act

[37] Section 106E of the Act provides:

‘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.’

[38] Section 85 and Subdivisions B and C of Division 7 of the Act deal respectively with unpaid pre-adoption leave, unpaid carer’s leave, and paid and unpaid compassionate leave. The word ‘day’ is not defined in the Act.

[39] The ACTU submits it is clear that ‘day’ for the purposes of paid and unpaid leave in the NES means ‘the actual number of hours an employee works in a 24 hour period.’ 33 However, the ACTU is concerned that:

‘the meaning of a ‘day’ in the context of paid personal/carers leave in s.96(1) of the [Act], including the effect (if any) of s 106E, remains the subject of ongoing Federal Court proceedings in Mondelez Australia Pty Ltd v AMWU and Ors VID731/2018. As such it is not possible to assess with any certainty at this time the impact of s 106E on the NES entitlement compared with the [model term]. The proposed deletion of the [model term] should not proceed in these circumstances.’ 34

[40] We understand that the applicant in Mondelez Australia Pty Ltd v AMWU and Ors 35 (Mondelez) is seeking a declaration under s.21 of Federal Court Act 1976 (Cth) in relation to the meaning of the phrase ‘10 days of paid personal/carer’s leave’ in s.96(1) of the Act. We further understand that the Full Court reserved its decision on 21 February 2019.

[41] The Federal Court application in Mondelez was made after Vice President Hatcher in Mondelez Australia Pty Ltd 36 declined to refer an agreement approval application to a Full Bench to consider the meaning of the phrase in s.96(1). In so doing, the Vice President rejected submissions that there is divided Full Bench authority on the proper interpretation of s.96(1), or that doubt arises from the Commission and Federal Court authorities that have subsequently considered the issue. The Vice President found that the ‘position to be applied by single members of the Commission is as stated in RACV v ASU, which has comprehensively dealt with the question.’37 In RACV v ASU38 the Full Bench rejected the view that ‘10 days’ was to be read as meaning 10 periods of 7.6 hours (or another specific number of working hours) and found that ‘a “day” of leave (whether of annual or personal/carer’s leave) is an authorised absence from the working time in a 24 hour period.’39

[42] Both Ai Group and ACCI submit that it is not clear what relevance Mondelez has to the matter before us. 40 Ai Group further submits that the meaning of ‘day’ in the model term is consistent with the meaning under s.106E, but that if the two differed, this would be a further reason for deleting the model term, so as to ensure consistency of entitlements.41

[43] The point advanced by the ACTU does not persuade us to depart from our provisional view. The point put is purely speculative and amounts to little more than an assertion that Mondelez may result in a different meaning being given to ‘day’ in the NES entitlement to that given in RACV v ASU. If that did eventuate, it could be considered in the June 2021 review, discussed further below.

The June 2021 review

[44] In the March 2018 Decision, the Full Bench observed that family and domestic violence is ubiquitous and that such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. It is an issue that impacts on workplaces and which requires specific action. The model term inserted into 123 modern awards was a cautious regulatory response to this issue.

[45] The Full Bench proposed to revisit the model term in June 2021 after it had been in operation for three years to consider the following issues:

• whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;

• whether any changes are needed to the unpaid leave model term;

• whether provisions should be made for paid family and domestic violence leave.

[46] Our decision to delete the model term and replace it with a reference to the NES as set out at [13] does not obviate the requirement for a review of the scope of the term and of the issues set out above. We intend to proceed with our consideration of the above issues and interested parties will be invited to participate in the review. A Statement will be issued in late 2020 about the process for the review.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR710648

1 [2018] FWCFB 3936

2 Including the Australian Government Industry Award 2016

3 [2019] FWCFB 767

4 [2019] FWCFB 767 at [5].

5 [2008] AIRC 1001 at [34]

6 ACTU submission dated 14 March 2019.

7 [2019] FWC 3262.

8 Ai Group submission dated 17 May 2019.

9 ACCI submission dated 22 May 2019.