Ismail, Sophie --- "Paid family and domestic violence leave: The origins and significance of the ACTU's modern award case" [2022] PrecedentAULA 28; (2022) 170 Precedent 15

---

PAID FAMILY AND DOMESTIC VIOLENCE LEAVE

THE ORIGINS AND SIGNIFICANCE OF THE ACTU’S MODERN AWARD CASE

By Sophie Ismail

‘If I didn’t have access to [paid family and domestic violence] leave, I would have lost my job, I would have lost everything ... I don’t know if I would have survived ... [paid family and domestic violence leave] was my lifeline. (Soraya, interview participant)’.^[1]

INTRODUCTION

The statistics on the prevalence of family and domestic violence (FDV) in Australia are well known.

In March 2021, the House of Representatives Standing Committee Inquiry into family, domestic and sexual violence against women found that rates of violence against women in Australia ‘do not appear to be declining’^[2] and that violence against women ‘remains a matter of serious concern across the nation’.^[3]

There is evidence that the frequency and severity of FDV has risen during the pandemic. Data released by the Australian Bureau of Statistics in June 2021 shows that the number of police-recorded victims of FDV-related sexual assault increased by 13 per cent in 2020.^[4] A 2020 report by Queensland University of Technology’s Centre for Justice found that 62 per cent of services experienced increases in the number of clients accessing their services during the COVID-19 pandemic.^[5]

It is apparent from the research that certain groups experience the impacts of FDV differently and more severely, including people with disability, younger women, people in remote, very remote and disadvantaged areas, and Indigenous people.^[6] While men can and do experience FDV, it is clear that FDV is ‘overwhelmingly a crime against women’.^[7]

THE CLAIM FOR PAID FAMILY AND DOMESTIC VIOLENCE LEAVE

Acting on the principle that FDV is a workplace issue requiring a workplace response, Australian unions have led the world in campaigning for paid FDV leave for Australian workers.

In 2009, a ‘model’ collective bargaining clause providing for 20 days’ paid FDV leave (as well as a range of other supports) was developed in partnership between NSW unions and the Australian Domestic & Family Violence Clearinghouse, a group of academics from the University of NSW with expertise in FDV and its impact on women’s workforce participation, safety and economic security.^[8]

Growing recognition of the need to be safe at work

The Australian union movement’s claim for paid FDV leave was part of a fundamental shift in approach to FDV advocacy and support that began in the 1970s. Due to the efforts of feminist advocates, there had finally been recognition that FDV is not a private, domestic issue to be dealt with by the affected woman alone, but instead a crime and a broader societal problem with significant public health, economic, social and legal implications, requiring a public policy response.^[9] Early efforts in Australia and around the world focused on establishing women’s refuges: an important step forward for women’s safety. However, the removal of women and children from their homes and communities was inevitably extremely disruptive to women’s employment and their financial security, as well as their children’s schooling, social connections and all other aspects of their lives. This approach also inadvertently contributed to a lack of accountability for perpetrators, because women and children were left bearing the significant financial, emotional, and social costs of having to leave their homes and communities in order to be safe.^[10]

A further shift occurred in the mid-90s, with the UN’s Declaration on the Elimination of Violence Against Women in 1993 recognising violence against women as a human rights violation; ratifying States began accepting responsibility for taking steps to protect women against violence and uphold their human rights. Intervention efforts began to refocus on assisting women to stay in their homes where it was safe to do so. Known as ‘safe at home’ policy interventions, these efforts aimed to minimise the disruption caused to women and children by violence. This was recognised not only as a more gender equitable and socially just response, but also as a more cost-effective approach that would reduce the economic burden on the women involved and on the community more broadly.^[11] A direct consequence of this shift in approach was growing recognition of the need for women to also be safe at work: to be supported to retain their jobs and their incomes wherever possible. This embedded the role of the workplace as a key source of support for people experiencing FDV.^[12]

Promoting the need for paid leave

Crucially, a central aspect of the Australian union movement’s claim has always been that FDV leave must be paid. Consistent with the ‘safe at home’ approach, the provision of paid leave is aimed at minimising the damage to a person’s life and economic security caused by FDV. The ACTU’s claim for paid leave acknowledges that financial security is ‘an absolutely critical factor in whether or not a person accesses support services’ and is ‘the primary factor determining whether a person subjected to family and domestic violence remains in, escapes from or returns to a dangerous relationship’.^[13]

In 2010, an enterprise agreement negotiated by the Australian Services Union and the Surf Coast Shire Council in Torquay, Victoria was approved by the Fair Work Commission (Commission).^[14] Clause 4.3 of the agreement provided for 20 days per year of paid FDV leave for medical appointments, legal proceedings and ‘other activities related to domestic violence’. The clause included other supports, such as a trained family violence contact person and approval of reasonable requests for changes to work hours, location and duties.^[15] This was the first example in the world of an enforceable entitlement to paid FDV leave.^[16]

Since this ground-breaking development, the prevalence of paid FDV leave in enterprise agreements has steadily increased. Recent research conducted for the Commission shows that around 1.13 million employees on current enterprise agreements (or 63.5 per cent of all employees on current enterprise agreements) have access to paid FDV leave.^[17] It is likely that coverage is in fact higher, as every state and territory government in Australia now provides paid FDV leave to its employees, not all of whom are included in the above figures.

While significant progress has been made since 2010 in some sectors through enterprise bargaining, large numbers of Australian workers still have no access to paid FDV leave; this can mean that workers subjected to FDV are forced to make a choice between poverty and safety.^[18] This highlights the need for a universal entitlement to paid FDV leave that is guaranteed and enforceable, enabling workers to deal with matters arising from FDV while maintaining both their employment and income continuity.

History of Award proceedings

Industrial relations specialist Professor Jill Murray said in 2005, ‘the so-called test case function of the Australian Industrial Relations Commission and its forerunners has been one of the most significant regulatory institutions/processes in Australian social, economic and political history.’^[19]

Test cases are applications to the national industrial relations tribunal to vary the content of federal awards, in order to ensure that working conditions keep pace with social and economic changes. Test cases are unique to the Australian industrial system and have often resulted in improved rights for working women. One of the first test cases arose from an application by unions representing female fruit-packers for equal pay for equal work.^[20] Since then, the test case mechanism has resulted in some hugely significant advances in working conditions for women, including maternity leave, paternity leave, and adoption leave;^[21] the right of parents and carers to seek flexible working arrangements;^[22] carer’s leave;^[23] and reasonable working hours.^[24] Due to changes in the role and function of the industrial tribunal and the nature of awards, changes to federal awards are no longer decisions made by the tribunal in settlement of disputes, but rather regulatory decisions guided by broad social and economic policy objectives.

In 2014, as part of the 4-yearly review of modern awards, the ACTU applied under s156 of the Fair Work Act 2009 (Cth) (FW Act) to vary all modern awards to include an entitlement to 10 days per year of paid FDV leave.^[25] On 3 July 2017, a Full Bench majority made a preliminary decision that it was necessary to make provision for FDV leave in modern awards;^[26] and on 26 March 2018 a Full Bench made a final decision that it was necessary to vary all modern awards to include a new entitlement to 5 days’ unpaid FDV leave.^[27] A decision was made to insert a clause into all modern awards, effective from 1 August 2018.^[28] In December 2018, the FW Act was amended to include 5 days’ unpaid FDV leave in the National Employment Standards (NES), in terms substantially the same as the modern award term.^[29] In July 2019 the modern award term was replaced by a reference to the NES entitlement. This means that, since August 2018, 2.23 million employees^[30] covered by modern awards have had a right to 5 days’ unpaid FDV leave, a right extended to all employees covered by the FW Act from December 2018. The FW Act provision entitles employees experiencing FDV to take up to 5 days per year of unpaid FDV leave if the employee is ‘experiencing’ family and domestic violence; ‘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’.^[31]

In its decision issued on 3 July 2017, a majority of the Full Bench made a number of significant findings, including that:

(a) Family and domestic violence is ‘a significant problem’ which has ‘significant impacts’ on affected individuals and the community,^[32] and ‘real and tangible impacts on employees and employers in the workplace.’^[33]

(b) ‘[T]he evidence established that the circumstances faced by employees who experience family and domestic violence [by contrast with other forms of interpersonal crime or hardship] require a special response.’^[34]

(c) Existing entitlements, such as the right to request a flexible working arrangement, personal leave, and annual leave, do not meet the needs of employees subjected to family and domestic violence.^[35]

In relation to the ACTU’s claim that FDV leave should be paid, the Commission said:

‘We accept the evidence that the provision of paid leave would assist employees who experience family and domestic violence. It would obviously reduce the financial impact of the consequences of the violence. We accept the evidence that employees who experience family and domestic violence face financial difficulties as a result of the family and domestic violence such as relocation costs or becoming a sole parent. Having to lose pay at the same time because of the need to attend to the consequences of family and domestic violence would add to the financial burden faced by these employees. We therefore, would have no difficulty in concluding that the provision of paid leave would be a desirable outcome.’^[36]

In 2018, the Commission said that its decision to provide for 5 days’ unpaid FDV leave (rather than 10 days’ paid FDV leave as had been claimed by the ACTU) represented ‘a cautious regulatory response’, noting that the extent to which the new entitlement to unpaid leave would be utilised was unknown, as was the impact of the new entitlement on business. The Commission foreshadowed a review in June 2021 of the new unpaid FDV leave entitlement and a revisiting of the need for paid FDV leave. ^[37] The Review commenced in April 2021,^[38] with final submissions heard on 8 April.^[39]

THE REVIEW – ‘A FAIR AND RELEVANT SAFETY NET’

The principles applicable to the exercise of power under s157 of the FW Act were not in dispute between the parties in the Review. Importantly, it is well established that a party (in this case the ACTU) seeking a change to awards ‘must adduce probative evidence to support the contention that the variations are necessary to achieve the modern awards objective.’^[40]

While the Commission had ‘no difficulty’ concluding in 2018 that paid FDV leave was a ‘desirable’ outcome, the statutory framework requires something more – namely, that the variation be ‘necessary’ to achieve the ‘modern awards objective’.^[41]

The ‘modern awards objective’ requires the Commission to ensure that modern awards (together with the NES) provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account a number of broad social and economic policy factors set out at s134(1)(a)–(h). These include:

• the needs of low paid people;

• the need to promote social inclusion;

• the likely impact on business (including on productivity, employment costs and the regulatory burden); and

• the likely impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

In the Review, the ACTU argued that, while the Commission’s decision in 2018 to introduce 5 days’ unpaid FDV leave was an important step providing some level of protection to employees experiencing FDV, it was not sufficient to provide a ‘fair and relevant’ safety net within the meaning of s134(1). The reason given was that the absence of income during the period of leave means the safety net remains incomplete.^[42]

In support of its contention that 10 days’ paid FDV leave is ‘necessary to ensure that employees are provided with a fair and relevant safety net of minimum terms and conditions of employment’,^[43] the ACTU has filed evidence from a range of professional staff who provide support to people experiencing FDV, as well as expert reports from two economists addressing the likely costs and benefits of FDV leave.^[44] The ACTU argues that the Commission should find, after considering all the evidence, that:

• FDV remains prevalent, and disproportionately affects women.^[45]

• It is a workplace issue.^[46]

• It imposes significant costs on workers, employers and the national economy.^[47]

• Income and employment are critical to enable people to leave and recover from violent relationships.^[48]

• The costs of FDV leave on employers will not be significant, and are ‘likely to be largely offset by improved productivity and reduced absenteeism’.^[49]

The employer parties, represented by the Australian Chamber of Commerce and Industry and the Australian Industry Group, oppose the ACTU’s claim.^[50]

The Commission is authorised by ss590 and 591 of the FW Act to inform itself in relation to any matter before it in any manner it considers appropriate. The Commission decided to conduct its own independent research program for the Review, consisting of a literature and data review;^[51] an analysis of data from the Workplace Agreements Database;^[52] a qualitative assessment on the experience of family and domestic violence leave;^[53] and a survey of employers.^[54]

AN HISTORIC DECISION

On 16 May 2022, the Full Bench issued a provisional decision on the Review, concluding that the insertion into modern awards of 10 days’ paid FDV leave is necessary to achieve the modern awards objective.^[55]

In this decision, the Full Bench accepted the ACTU’s overarching argument that ‘FDV is a workplace issue that requires a workplace response and ... paid FDV leave is a critical mechanism for employees to maintain their employment and financial security, while dealing with the consequences of FDV’.^[56] It found, further, that 10 days’ paid FDV leave will help individuals to safely exit to a life free from violence.^[57]

If confirmed, this decision will mean that all full-time and part-time employees reliant on modern awards will have access to 10 days’ paid FDV leave. This is an historic decision and a huge step forward for the 2.66 million Australian workers dependent on modern awards. To the ACTU’s knowledge, this is the first time the national industrial tribunal has supported a new permanent entitlement to paid leave for all award covered workers.^[58] However, award provisions apply only to about one in four workers, meaning that many workers remain unprotected. For this reason, the ACTU continues to campaign for an amendment to the NES to include 10 days’ paid FDV leave, which would cover the vast majority of the Australian workforce.

Helplines offering support to people experiencing FDV are listed on page x.

Sophie Ismail works for the ACTU in the role of Senior Legal and Industrial Officer – Gender Equity.

---

^[1] K Fitz-Gibbon, N Pfitzner, E McNicol and H Rupanagudi, Safe, Thriving and Secure: Family violence leave and workplace supports in Australia (Report, Monash University, 2021), 28.

^[2] House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into family, domestic and sexual violence, 2021, [2.20].

^[3] Ibid, [2.27].

^[4] Australian Bureau of Statistics, Recorded Crime – Victims, 2020 <https://www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-victims/latest-release>.

^[5] K Carrington et al, The Impact of COVID-19 Pandemic on Domestic and Family Violence Services and Clients, Australia, Centre for Justice Briefing Paper No. 12, Queensland University of Technology, May 2021 <https://research.qut.edu.au/centre-for-justice/wp-content/uploads/sites/304/2021/09/Carrington-et-al-FINAL-paper-05052021.pdf>.

^[6] Australia Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019 (Report, 2019), 6–9 <https://www.aihw.gov.au/getmedia/b180312b-27de-4cd9-b43e-16109e52f3d4/aihw-fdv4-FDSV-in-Australia-2019_in-brief.pdf.aspx?inline=true>.

^[7] M Flood, Expert Report to the Fair Work Commission, 26 May 2016, [3.6] <https://asset.fwc.gov.au/documents/sites/awardsmodernfouryr/common/exportreport-flood.pdf>.

^[8] M Baird, L McFerran and I Wright, ‘An equality bargaining breakthrough: Paid domestic violence leave’, Journal of Industrial Relations, Vol. 56, No. 2, 2014, 190–207.

^[9] Ibid.

^[10] K Crinall, J Hurley and L Healey, SAFER Research Program, ‘Safe at home’ programs in the context of the Victorian Integrated Family Violence Service System Reforms: A review of the literature, 2012, 13.

^[11] Ibid, 10–14.

^[12] L McFerran, Australian Domestic and Family Violence Clearinghouse at the University of New South Wales and Micromex Research, Safe at Home, Safe at Work? National Domestic Violence and the Workplace Survey (2011), Gendered Violence Research Network, University of NSW, 2011.

^[13] ACTU Initial Submissions, AM2021/15 Family and Domestic Violence Leave Review, 2020, [98]–[99] <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/submissions/am202155-sub--actu-300721.pdf>.

^[14] Surf Coast Shire Council Enterprise Agreement (No 7) [2010] FWAA 9380.

^[15] Surf Coast Shire Council Enterprise Agreement (No 7) 2010, cl 4.3.

^[16] J Pillinger, Violence and Harassment against Women and Men in the World of Work: Trade Union Perspectives and Action, International Labour Organization, 2017, 56, 61, 137–9.

^[17] K Seymour, R Hirsch, S Wendt and K Natalier, ‘Analysis of the Workplace Agreements Database for the Family and Domestic Violence Leave Review’, Social Work Innovation Research Living Space, Flinders University, 3 November 2021 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/correspondence/am202155-report-literature-review-031121.pdf>; Fair Work Commission, Information note – ACTU supplementary submission to the Family and Domestic Violence Leave Review, 11 March 2022 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/research/am202155-info-note-actu-supp-subs-110322.pdf>.

^[18] Fair Work Commission Matter No. AM2015/1, Exhibit B-12: Witness Statement of Julie Kun, [22] <https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-exhibit-b12-171116.pdf>.

^[19] J Murray, ‘The AIRC’s Test Case on Work and Family Provisions: The End of Dynamic Regulatory Change at the Federal Level?’, Australian Journal of Labour Law, Vol. 18, No. 3, 325–43, 325.

^[20] The Rural Workers Union and The South Australian United Labourers' Union v. The Employers [1912] CthArbRp 33; (1912) 6 CAR 61 <https://www.fwc.gov.au/documents/documents/archives/1912fruitpickers.pdf>.

^[21] Federated Miscellaneous Workers Union of Australia v ACT Employers Federation (1979) 218 CAR 120 (Maternity Leave Case); Re Clothing & Allied Trades Union of Australia [1985] CthArbRp 426; (1985) 298 CAR 321 (Adoption Leave Test Case); Parental Leave Case (1990) 36 IR 1; Parental Leave – Casual Employees – Test Case (Re Vehicle Industry Award (2001) 107 IR 71.

^[22] Family Leave Test Case (1994) 57 IR 121; Personal/Carer’s Leave Test Case – Stage 2 – November 1995 (1995) 62 IR 48; and Parental Leave Test Case 2005 (2005) 143 IR 245.

^[23] Ibid.

^[24] Re Working Hours Case July 2002 (2002) 114 IR 390.

^[25] Fair Work Commission, Four Yearly Review of Modern Awards, AM2015/1 Family and Domestic Violence Leave, ACTU, ‘Outline of Claim: Family and Domestic Violence’, 134/2014, 28 October 2014, [2]–[5], [10]–[20] <https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sub2-actu-281014.pdf>.

^[26] 4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 3494 <https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3494.htm>.

^[27] 4 yearly review of modern awards – Family and Domestic Violence Leave

[2018] FWCFB 1691 <https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1691.htm>.

^[28] 4 yearly review of modern awards – Family and Domestic Violence Leave [2018] FWCFB 3936 (6 July 2018) <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2018/3936.html?context=1;query=Family%20and%20Domestic%20Violence%20Leave%20%202018;mask_path=#fn4> .

^[29] Fair Work Act 2009 (Cth) (FW Act), ss106A–E, 107.

^[30] Australian Bureau of Statistics, Employee Earnings and Hours, May 2018, 2019 <https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/employee-earnings-and-hours-australia/may-2018>.

^[31] FW Act, s106(1)(B).

^[32] 4 Yearly Review of Modern Awards – Family and Domestic Violence Leave Clause [2017] FWCFB 3494, [49].

^[33] Ibid, [54].

^[34] Ibid, [51].

^[35] Ibid, [42]–[46], [55].

^[36] Ibid, [60].

^[37] 4 yearly review of modern awards – Family and Domestic Violence Leave [2018] FWCFB 1691, [307]–[309].

^[38] Fair Work Commission, Statement: Family and Domestic Violence Leave Review [2021] FWCFB 2047, [12] <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/decisions-statements/2021fwcfb2047.pdf>.

^[39] Family and Domestic Violence Leave Review (AM2021/55), Transcript of Proceedings on 8 April 2022 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/transcript/080422-am202155.htm>.

^[40] Application to vary the Real Estate Industry Award 2020 [2020] FWCFB 3946, [56]. <http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FWCFB/2020/3946.html?query=> .

^[41] FW Act, s157(1).

^[42] Fair Work Commission, Family and Domestic Violence Leave – Review, Final Submissions of the ACTU – Submissions on Evidence, 28 March 2022, [2] <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/submissions/am202155-sub-ev-actu-280322.pdf>.

^[43] Fair Work Commission, AM2021/55, Family and Domestic Violence Leave – Review, Outline of Submissions of the ACTU, 30 July 2021, [3](c) <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/submissions/am202155-sub--actu-300721.pdf>.

^[44] Above note 42, [4]–[15]; [36]–[44].

^[45] Ibid, [50]–[56].

^[46] Ibid, [57].

^[47] Ibid, [58–[72].

^[48] Ibid, [73–[77].

^[49] Ibid, [81].

^[50] Australian Industry Group, Family and Domestic Violence Leave Review Reply Submission (AM2021/55), 4 February 2022 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/submissions/am202155-sub-aig-040222.pdf>; AM2021/55 Family and Domestic Violence Leave Review, Australian Chamber of Commerce and Industry Reply Submissions dated 4 February 2022 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/submissions/am202155-sub-acci-040222.pdf>.

^[51] K Seymour, S Wendt, K Natalier and R Hirsh, Family and Domestic Violence Leave Entitlement in Australia: A Systemic Review, Report prepared for the Fair Work Commission, Fair Work Commission (Report, November 2021) <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/correspondence/am202155-report-wad-data-031121.pdf>.

^[52] K Seymour, R Hirsch, S Wendt and K Natalier, Analysis of the Workplace Agreements Database for the Family and Domestic Violence Leave Review, Fair Work Commission, Social Work Innovation Research Living Space, Flinders University, 2021

<https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/correspondence/am202155-report-literature-review-031121.pdf>.

^[53] K Fitz-Gibbon, N Pfitzner, E McNicol and H Rupanagudi, Safe, thriving and secure: Family violence leave and workplace supports in Australia, Monash University, Victoria, 2021 <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/correspondence/am202155-report-safe-thriving-secure-101221.pdf>.

^[54] Fair Work Commission, Survey analysis for the family and domestic violence leave review (Report, 2021) <https://www.fwc.gov.au/documents/sites/family-domestic-violence-leave/correspondence/am202155-report-survey-analysis-101221.pdf>.

^[55] Family and Domestic Violence Leave Review 2021 [2022] FWCFB 2001, [82].

^[56] Ibid, [78], [782].

^[57] Ibid, [76].

^[58] To date, all other leave entitlements inserted into modern awards by the Commission have been unpaid, except for a temporary entitlement to paid pandemic leave for employees covered by the Aged Care Award 2010, the Nurses Award 2010, and the Health Professionals and Support Services Award 2020 (Health Sector Awards – Pandemic Leave [2020] FWCFB 3940).