Introduction and Overview
The Fair Work Commission (FWC) is conducting a review of the model term providing for five days unpaid family and domestic violence (FDV) leave (Review). As part of the Review, the ACTU is seeking a variation to all modern awards in the form of an entitlement to 10 days paid FDV leave.
In support of its application, on 30 July 2021 the ACTU filed expert reports from two economists and statements from 10 lay witnesses, as well as written submissions (ACTU July submissions). In November and December 2021, the FWC released four publications as part of its research program designed to assist the Review: a literature and data review (SWIRLS Report), an analysis of the Workplace Agreements Database (WAD Report), a qualitative assessment of employees’ experiences of FDV leave (Monash Report), and a survey of employers (Employer Survey). On 22 December 2021, the ACTU filed further submissions addressing these publications (ACTU December submissions).
Since the service of the ACTU’s July and December submissions, the FWC has received correspondence or submissions in support of the ACTU’s application from the Queensland government, Job Watch, and the West Australian government. A submission of certain local government associations in respect of the Local Government Industry Award 2020 supports the ACTU’s application for paid FDV leave, although for five days instead of 10; and otherwise opposes the ACTU’s application with respect to the rate of pay, the availability of leave to casual employees, and the access to unpaid leave. The Associations support the ACTU’s application for an expanded definition of family and domestic violence.
- Three employer groups oppose the ACTU’s proposed variation in its entirety: the Australian Chamber of Commerce and Industry (ACCI), the Australian Industry Group (AI Group), and the Master Grocers’ Australia Ltd (MGA) (together, the opposing parties). The ACCI and AI Group’s membership does not appear to be confined to one particular award or set of awards. The majority of the MGA’s members are covered by the General Retail Industry Award 2020 and the Timber Industry Award 2020.
- None of the opposing parties have filed any evidence in support of their position, or in response to or addressing any of the ACTU’s evidence, or the FWC’s research program. The basis for their opposition is contained exclusively in the written submissions, which collectively comprise 251 pages. Taking into account that on 11 March 2022, the parties will file submissions on the conclusions to be drawn from the evidence, and given the length of the opposing parties’ submissions and the degree of overlap between them, the ACTU has sought in these reply submissions to identify and address the key legal arguments and broad merit-based themes in the opposing parties’ submissions, as well as a number of distinct matters. These are:
(a) Whether the FWC has jurisdiction to extend the National Employment Scheme (NES) entitlement to paid personal/carer’s leave to incorporate paid FDV leave.
(b) The proper approach to the review, including whether the ACTU’s proposed variation is inconsistent with s 55 of the Fair Work Act 2009 (Cth) (FW Act), and whether it is necessary to look at each award individually.
(c) The extent to which there is a gap in the safety net, including the adequacy of current leave entitlements, and of existing social services directed to assisting persons affected by FDV.
(d) Whether paid FDV leave is properly a matter to be determined by Parliament or at the enterprise level.
(e) The impact on employers, including the cost, of providing paid FDV leave.
(f) The terms of the ACTU’s proposed variation, specifically:
i. The interaction with the NES.
ii. The application for 10 days leave;
iii. The application of paid FDV leave to casual employees;
iv. The definition of FDV;
v. Other matters.
(g) Other matters raised in or by the opposing parties’ submissions including the impact of the Covid-19 pandemic and the existence of other social ills.