DECISION

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

s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Family and domestic violence leave review 2021
(AM2021/55)

Family and domestic violence leave review 2021 – 4 yearly review of modern awards – application to vary modern awards – paid family and domestic violence leave – provisional views.

INDEX

ABBREVIATIONS

The Fair Work Commission would like to thank everyone who was involved in these proceedings. This includes the industrial parties, witnesses and researchers, the employers who took the time to complete the Employer Survey and the victim-survivors who gave their time to inform the Monash Report. We note that this decision includes descriptions of domestic violence drawn from the submissions and reports that we have considered in these proceedings and we acknowledge that this material may be distressing.

1. Introduction

[1] This decision is about whether modern awards should be varied to provide for paid family and domestic violence (FDV) leave (FDV leave) and additional unpaid FDV leave.

[2] The present proceedings arose out of the 4 yearly review of modern awards (the 4 Yearly Review) and were foreshadowed in a decision issued by a Full Bench of the Commission0F¹ on 26 March 2018 (the March 2018 FDVL Decision).1F² During the course of the proceedings the Australian Council of Trade Unions (ACTU) filed a claim which, in essence, seeks to vary all modern awards to insert an entitlement to 10 days’ paid FDV leave in a 12-month period and up to 5 days’ unpaid FDV leave on a per occasion basis (the ACTU claim). The ACTU claim was originally lodged on 30 July 2021. The ACTU filed an amended proposed variation on 22 February 2022 (the Amended Claim) and a further amended proposed variation to modern awards was filed on 28 March 2022 (the Further Amended Claim). The ACTU claim (as reflected in the Further Amended Claim) is discussed in Chapter 3 of this decision. It is convenient to refer to the ACTU’s claim generally as ‘the ACTU claim’ unless we are referring specifically to drafting or terms in the Amended Claim or the Further Amended Claim.

[3] The relevant background may be shortly stated.

[4] In 2014, as part of the 4 Yearly Review, the ACTU sought to vary all modern awards to include an entitlement to 10 days of paid FDV leave per year. That claim was rejected in 2017,2F³ but the majority of the FDV leave Full Bench which dealt with the claim expressed the preliminary view that all employees should have access to unpaid FDV leave and, further, that employees should be able to access personal/carer’s leave for the purpose of taking FDV leave3F⁴ (the July 2017 Majority Decision).

[5] The FDV leave Full Bench was then reconstituted after the retirement of one of its Members4F⁵ and the Full Bench issued the March 2018 FDVL Decision confirming the preliminary view in respect of access to unpaid FDV leave.5F⁶

[6] A model term for unpaid leave to deal with FDV was finalised in a decision published by the Full Bench as currently constituted6F⁷ on 6 July 2018.7F⁸ The model term provided an entitlement to 5 days’ unpaid leave for employees dealing with FDV and:

•  applied to all employees (including casuals)

•  was available in full at the commencement of each 12-month period, rather than accruing progressively during a year of service

•  did not accumulate from year to year, and

•  was available in full to part-time and casual employees (i.e. was not pro-rated).

[7] It was also decided not to require employees to access any available paid leave entitlement before accessing unpaid FDV leave.

[8] The March 2018 FDVL Decision concluded as follows:

‘[307] This decision takes a cautious regulatory response to this issue. We have decided to provide five days’ unpaid leave to employees experiencing family and domestic violence, if the employee needs to do something to deal with the impact of that violence and it is impractical for them to do it outside their ordinary hours of work. We have decided to defer our consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

[308] The extent to which the new entitlement to unpaid leave will be utilised is unknown, as is the impact of the new entitlement on business.

[309] 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 any changes are needed to the unpaid leave model term, and whether to allow access to personal/carer’s leave. At that time we will also revisit the question of whether provisions should be made for paid family and domestic violence leave.’8F⁹

[9] Some 123 modern awards were subsequently varied to include the unpaid leave entitlement.9F¹⁰ The new modern award entitlement came into operation on 1 August 2018.

[10] The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) (the FDV Leave Amendment Act) amended the Fair Work Act 2009 (Cth) (the FW Act) to include an entitlement to unpaid FDV leave as part of the National Employment Standards (NES). The NES entitlement (Attachment A) was in substantially the same terms as the model term.10F¹¹ The FDV Leave Amendment Act commenced on 12 December 2018.

[11] The Explanatory Memorandum to the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 says:

‘Family and domestic violence is a significant community issue, which has a real and tangible impact on employees and employers in the workplace. It disrupts employment and precludes workforce participation because some employees who need time off work to deal with the impact of the family and domestic violence may see resignation as their only option. The effects of family and domestic violence are far reaching and extend beyond the individual directly affected to their families and the general community. The inclusion of unpaid family and domestic leave in the NES would provide invaluable support to employees who are experiencing family and domestic violence.

A new entitlement to unpaid family and domestic violence leave in the NES would also ensure, as far as possible, consistency in entitlements for employees in the national system. From 1 August 2018, as a result of the 26 March 2018 FDVL Decision the Fair Work Commission (the Commission) made as part of the 4 Yearly Review of Modern Awards, a new clause providing five days of unpaid family and domestic violence leave took effect in 123 modern industry and occupation awards. The new clauses inserted by the Commission only affect employees whose terms and conditions are set by those awards. Many Australian employers have also already implemented policies and entitlements to provide such support to their employees. However, there are still millions of Australian employees in the national system who do not have access to family and domestic violence leave.

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.’11F¹²

[12] As a result of the amendments to the FW Act, an employee is entitled to 5 days of unpaid FDV leave in a 12-month period.12F¹³ The employee can take unpaid FDV leave if they are experiencing FDV; they need to do something to deal with the impact of the FDV, and it is impractical for them to do that thing outside their ordinary hours of work.13F¹⁴

[13] ‘Family and domestic violence’ is defined in the FW Act as violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful.14F¹⁵

[14] A ‘close relative’ of an employee is defined as a person who is a member of the employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.15F¹⁶ ‘Immediate family’ means 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.16F¹⁷

[15] The entitlement to unpaid FDV leave is available in full at the start of each 12-month period of an employee’s employment; does not accumulate from year to year, and is available in full to part-time and casual employees.17F¹⁸ If an employee is casual or employed for a specified period of time, or for a specified task or season, the employment period is taken to be the start of the employee’s first employment with that employer.18F¹⁹

[16] Unpaid FDV leave can be taken as a continuous period of 5 days, or in separate periods, including part days.19F²⁰

[17] An employer and employee can agree to the employee taking more than 5 days’ unpaid FDV leave.20F²¹

[18] An employee must give notice to their employer of the taking of unpaid FDV leave 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.21F²² The employee must, if required by their employer, give the employer evidence that would satisfy a reasonable person that the employee is experiencing FDV; the leave is taken because they need to do something to deal with the impacts of FDV, and it is impractical for them to do the thing outside their ordinary hours of work.22F²³ The employer must take steps to ensure as far as reasonably practicable that any notice or evidence is treated confidentially,23F²⁴ but can disclose information if required by an Australian law or it is necessary to protect the life, health or safety of the employee or another person.24F²⁵

[19] After the commencement of the NES entitlement to unpaid FDV leave, the Commission decided to remove the modern award terms and replace them with a note referring to the NES entitlement as part of the finalisation of the technical drafting issues in modern awards during the 4 Yearly Review.25F²⁶ At that time, we noted that:

‘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 …’26F27

[20] On 12 April 2021, the ACTU wrote to the Commission requesting that the review of the FDV leave provisions ‘commence urgently’,27F²⁸ noting that ‘the increased incidence of family and domestic violence during COVID-19 has clearly demonstrated that this remains a pressing problem confronting employees and employers and the wider community’.

[21] In a statement issued on 15 April 202128F²⁹ (the April 2021 Statement), we announced the commencement of the FDVL Review and stated that the following issues would be considered during the course of the FDVL Review:

1. whether employees should be able to access paid personal/carer’s leave for the purpose of taking FDV leave;

2. the adequacy of the unpaid FDV leave entitlement; and

3. whether provisions should be made for paid FDV leave.

[22] In the April 2021 Statement we also said that the Commission would conduct a research program to assist in the FDVL Review including:

•  a literature and data review

•  an analysis of the Workplace Agreements Database (WAD)

•  a qualitative assessment of the experience of FDV leave

•  a survey of employers seeking information on the use and operation of the unpaid FDV leave entitlement, and

•  an update of the Research Reference List first published in September 2017.

[23] It is convenient to deal at the outset with ACCI’s submission that it is not possible in the current circumstances to properly conduct the FDVL Review at this time.

1.1 The timing of the FDVL Review

[24] In its 4 February 2022 submissions, ACCI submits that it is impossible to undertake any form of meaningful ‘review’ of the current operation of the unpaid FDV leave entitlement in the present ‘dynamic context’ and in the absence of any relevant evidence.29F³⁰ The ‘dynamic context’ to which ACCI refers includes the circumstances of the COVID-19 pandemic. ACCI submits ‘the Full Bench may wish to identify a further review date - by which time the effects of the pandemic will be better known, and the conditions of the Australian workplace will be more stable’.30F³¹

[25] Similarly, Ai Group submits there is limited evidence available to assist in the conduct of the FDVL Review:

‘Evidence of how over-award arrangements or enterprise agreement provisions relating FDV leave operate is of limited value and does not rectify this void. Nor is it any answer to criticise employer parties for not calling related evidence on the erroneous assumption that we are able to (an assumption that ignores the fact that we cannot compel our members to give evidence and there are limitations on the resources that we can devote to the current proceedings). Ultimately, if factual considerations are not able to be taken into account by the Full Bench, it should decline to disturb the current safety net. This is consistent with the maintenance of a stable modern awards system.’31F32

[26] The ACTU makes 3 points in response to ACCI:

1. It is not productive to raise in early 2022 that pandemic conditions are not optimum for the conduct of the FDVL Review and to suggest the FDVL Review be deferred on that basis. The FDVL Review was foreshadowed, and then commenced, in April 2021. The disruptive nature of the COVID-19 pandemic was then well-known. ACCI did not object to the conduct of the FDVL Review at that time nor did it suggest that the Review be deferred.32F³³

2. Data collection in this area is challenging. This was the case before the COVID-19 pandemic. The absence of a perfect data set is not a valid reason to defer the FDVL Review. The Commission, along with many other courts and tribunals, frequently considers applications for orders which proceed on imperfect or incomplete data, but in which there is nonetheless sufficient evidence on which to make a determination. The relevant question for the Full Bench is whether the evidence before it, which includes the Commission Research, is sufficient to satisfy the Full Bench that it is necessary to vary modern awards.33F³⁴

3. The employers have not adduced any evidence as to the economic status of their members or of employers more generally as a result of the COVID-19 pandemic, nor sought to demonstrate in any measurable way the differences between award-covered employers’ pre-pandemic economic position with the current, and projected, economic performance of those employers. General assertions to this effect are not equivalent to probative evidence, and the issue is sufficiently complex that the Full Bench cannot take ‘judicial notice’ that all award-covered businesses have suffered economic harm during the pandemic.34F³⁵

[27] We deal with the ACTU’s second and third points about the available evidence in Chapters 6 and 7 of this decision; suffice to say here that we are satisfied that there is sufficient evidence to support the findings we have made and the position we have reached in respect of the ACTU claim.

[28] We agree with the first point raised by the ACTU. The FDVL Review was foreshadowed in the March 2018 FDVL Decision and we confirmed that the proposed review would proceed in our July 2019 decision. The foreshadowed review commenced with a statement and a conference in April 2021. The World Health Organisation declared COVID-19 a global pandemic on 11 March 2020,35F³⁶ and the Australian Government initiated the first guidelines for social distancing in order to stop or slow the spread of the coronavirus disease on 15 March 2020.36F³⁷ The impacts of the COVID-19 pandemic have been known for some time and, to the extent that the ACCI submission is advanced as a threshold issue, it had the opportunity to raise this early in the process.

[29] We also note that the Commission has conducted a number of other review proceedings during the COVID-19 pandemic in which Ai Group and ACCI have participated. These matters include:

1. AM2018/26 – The substantive issues in the review of the Social, Community, Home Care and Disability Services Industry Award 2010. Ai Group filed a supplementary submission and witness statement on 5 August 2021

2. AM2020/20 – Application to vary the Fast Food Industry Award 2010 – joint application by Ai Group, the ACTU and the SDA. Ai Group filed a witness statement in this matter

3. AM2020/102 – Application by the Motor Trades Association and Ai Group to vary the Vehicle Repair, Services and Retail Award 2020 (ACCI also made submissions)

4. AM2020/10 – Application to vary the Clerks–Private Sector Award – Ai Group and ACCI application to insert a COVID-19 schedule

5. AM2020/104 – Application to vary the Horticulture Award 2020. Ai Group made submissions

6. AM2021/72 – Proposed On Demand Delivery Services Award. ACCI made submissions, and

7. AM2017/51 – Overtime for casuals common issue proceedings – Ai Group made submissions.

[30] Although Ai Group sought extensions of time to file submissions in some of the above matters due to the demands of the COVID-19 pandemic, neither ACCI nor Ai Group submitted that the matters should be delayed; nor did they contend that they were unable to file evidence in those proceedings due to the ‘dynamic context’.

[31] Finally, in response to the ACCI submission that the Full Bench may want to defer the FDVL Review, we note that in the March 2018 FDVL Decision we found that:

‘Family and domestic violence is ubiquitous. One in four women in Australia have experienced such violence (or almost 2.2 million women). Family and domestic violence affects not only those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues …’37F38

[32] We make a similar finding later in this decision. We also note the ACTU submission ‘that there is a growing body of Australian and international literature showing that the frequency and severity of family and domestic violence has risen during the pandemic’38F³⁹. This submission is supported by the Social Work Innovation Research Living Space, Flinders University (SWIRLS) report, Family and Domestic Violence Leave Entitlement in Australia: A Systemic Review (the SWIRLS Report).39F⁴⁰

[33] In these circumstances, we reject the ACCI submission that the FDVL Review should be delayed.

[34] Following the April 2021 Statement, directions were issued for the filing of submissions and evidence.

[35] The following parties made submissions:

•  ACTU 30 July 2021, 22 December 2021 and 21 February 2022 and an amended proposed variation dated 22 February 2022

•  ACCI dated 4 February 2022

•  Ai Group dated 4 February 2022

•  Bank of Queensland dated 30 July 2021

•  Council of Small Business Organisations Australia dated 25 November 2021

•  JobWatch dated 22 December 2021

•  Local Government Associations dated 23 February 2022

•  Master Grocers Australia (MGA) dated 4 February 2022

•  McAuley Community Services for Women dated 30 July 2021

•  Queensland Government dated 21 December 2021

•  Victorian Government dated 28 July 2021, and

•  Western Australian Government dated 23 December 2021.

[36] The Australian Government did not file a submission in the FDVL Review.

[37] The hearing of the evidence took place on 1 March 2022. A transcript of that hearing was published on 2 March 2022.

[38] A Statement issued on 8 March 2022 varied the directions to require that the parties file and exchange written submissions addressing only the conclusions to be drawn from the evidence and closing submissions by 28 March 2022, and listing the matter for final oral submissions on Friday 8 April 2022.40F⁴¹

[39] In a Statement issued on 11 March 2022, we published the following documents:

•  a background document (Background Document 1)

•  Information Note – ACTU Supplementary Submission to the Family and Domestic Violence Leave Review, and

•  Information Note – Paid Family and Domestic Violence Leave by Business Size.

[40] Background Document 1 set out, amongst other things, a summary of the submissions of the main parties and posed a number of questions for the parties. Parties were asked to include answers to the questions in their submissions to be filed by 28 March 2022.

[41] The following submissions were filed in response to the amended directions:

•  ACCI – final submissions dated 28 March 2022

•  ACTU – Final submissions on evidence; Final submissions and Submissions in response to Background Document all dated 28 March 2022

•  Ai Group – final submission dated 28 March 2022, and

•  Victorian Government – final submission dated 28 March 2022.

[42] In a Statement issued on 5 April 202241F⁴² (the April 2022 Statement), we published the following documents:

•  a second background document (Background Document 2), and

•  Information note – Initiatives to reduce family and domestic violence in Budget
2022-23.

[43] Background Document 2 set out, among other things, the parties’ written closing submissions and the answers provided to the questions posed in Background Document 1. Background Document 2 also posed some additional questions which the parties were directed to answer by no later than 3pm on Thursday 7 April 2022. The following submissions were received:

•  ACCI submissions in response to Background Document 2 dated 7 April 2022

•  ACTU submissions in response to Background Document 2 dated 7 April 2022

•  Ai Group submissions in response to Background Document 2 dated 7 April 2022

[44] The April 2022 Statement also noted that the Commission’s Research Reference List had been updated to include the following:

•  Australian Government (2022), Budget Paper No. 2: Budget Measures, 29 March 2022

•  Australian Government (2022), Women’s Budget Statement 2022–23, 29 March 2022

•  Australian Domestic and Family Violence Death Review Network & Australia's National Research Organisation for Women's Safety (ANROWS) (2022), Australian Domestic and Family Violence Death Review Network Data Report: Intimate partner violence homicides 2010–2018, Second Edition, Research report 03/2022, ANROWS, and

•  Morgan A and Boxall H (2022), Economic insecurity and intimate partner violence in Australia during the COVID-19 pandemic, Research report, Issue 2, ANROWS, January 2022.

[45] Parties were invited to make submissions about these additions to the Research Reference List and about the Information Note on the Australian Government Budget 2022-23 (Budget 2022-23) at the hearing on 8 April 2022.

[46] The hearing of final oral submissions took place on 8 April 2022. A transcript of that hearing was published on 14 April 2022.

[47] It is convenient to note here that the central issue in the proceedings is whether all modern awards should be varied to provide for paid FDV leave and for supplementary unpaid FDV leave. For the reasons which follow, we do not propose to give any further consideration to the first 2 FDVL Review issues as set out at [21] above.

[48] As to the first FDVL Review issue, it is uncontentious that employees who require leave because of a personal illness or injury relating to FDV, and who are entitled to paid leave, may access personal/carer’s leave for that purpose.

[49] It is also common ground, at least as between the ACTU, ACCI and Ai Group,42F⁴³ that it is not open to the Commission to extend the NES entitlement to paid personal/carer’s leave for purposes other than those prescribed by s.97 of the FW Act, as such a term would contravene s.55 of the FW Act. This is said to be so because such a term would exclude the operation of the NES by depriving employees of the full entitlement to 10 days’ paid personal/carer’s leave; and would be detrimental to employees for that reason.

[50] The MGA initially took a different position. In its submission dated 4 February 2022, the MGA contended that a modern award term which permits employees to access personal/carer’s leave for FDV purposes is a term that supplements, and does not exclude, the NES,43F⁴⁴ because employees dealing with the consequences of FDV may be ‘not fit for work’ as a result and so fall within the scope of s.97 of the FW Act.44F⁴⁵

[51] Section 97 of the FW Act provides that an employee may take leave if they are not fit for work because of a personal illness, or personal injury and, in the case of carer’s leave, because of an unexpected emergency affecting the [family] member. The MGA submission did not address the causal relationship between the concept of ‘fitness for work’ and the limiting phrase ‘because of a personal injury or illness’ in respect of the personal leave aspect of s.97(a) of the FW Act. The MGA contended that the benefit of personal/carer’s leave is not ‘lost’ if employees are permitted to take this leave for a purpose other than as prescribed by the FW Act but did not otherwise address the arguments made against its position by the other parties in the proceeding.

[52] In Background Document 1, the MGA was asked whether it pressed its submission that a modern award term which permits access to paid personal/carer’s leave for FDV purposes does not contravene s.55 of the FW Act. If the submission was pressed, the MGA was invited to respond to those who put a contrary view. The MGA advised that it did not intend to file a response to Background Document 1.

[53] In Background Document 2, the following question was put to the MGA:

Q2 For MGA: Does the MGA press its submission that a modern award term which permits access to paid personal/carer’s leave for FDV purposes does not contravene s.55 of the FW Act? If the MGA does not respond to the question, it will be assumed that the submission is not pressed.

[54] The MGA advised that it did not press its submission that a modern award term which permits access to paid personal/carer’s leave for FDV purposes does not contravene s.55 of the FW Act.

[55] In circumstances where no party proposed that modern awards be varied to enable employees to access paid personal/carer’s leave for the purpose of taking FDV leave, we do not consider it necessary to express a concluded view in respect of the first FDVL Review issue.

[56] As to the second FDVL Review issue, it is common ground that it is not necessary to review the model term as finalised in the March 2018 FDVL Decision because the model term was removed from modern awards following the commencement of the NES entitlement. The adequacy of the NES entitlement to unpaid FDV leave will necessarily form part of our consideration of that part of the ACTU claim that seeks to provide an award entitlement to paid FDV leave and additional unpaid FDV leave.

2. Overview of the Decision

[57] In this chapter we provide an overview of our decision, findings and conclusions.

[58] These proceedings arose out of the 4 Yearly Review of modern awards conducted under s.156 of the FW Act.

[59] The essence of the ACTU claim is that modern awards be varied to provide all employees with 10 days’ paid FDV leave in a 12-month period and up to 5 days’ unpaid FDV leave on a per occasion basis. The overarching premise of the ACTU’s claim is that FDV is a workplace issue that requires a workplace response and that ‘paid leave provides a critical mechanism for employees to maintain their employment and financial security, while dealing with the effects of FDV’.45F⁴⁶

[60] Under Part 2-3 of the FW Act, the Commission has the power to make, vary or revoke modern awards either on the Commission’s own motion or in response to an application. Modern awards set minimum terms and conditions for national system employees in particular industries or occupations.46F⁴⁷

[61] The ACTU claim is made under s.157 of the FW Act. Under s.157(1), the Commission may only make the variations sought by the ACTU if it is satisfied that the variations are ‘necessary to achieve the modern awards objective’.

[62] 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 the matters at ss.134(1)(a)-(h). The FW Act also prescribes what may, must and must not be included in modern awards. Chapter 4 sets out some general observations about the Commission’s modern awards powers.

[63] In short, our task is to assess the evidence and submissions against the statutory tests, principally whether a modern award provides a fair and relevant safety net of terms and conditions and whether a proposed variation is necessary in order for the award to achieve the modern awards objective.

[64] We accept that variations to modern awards must be justified on their merits. The introduction of a paid FDV leave entitlement into modern awards would be a significant change and we accept that if we were to arrive at such a decision, we would clearly state our reasons for doing so. Those reasons would include a consideration of the March 2018 FDVL Decision and the facts and circumstances which have occurred since the implementation of that decision.

[65] We accept that these proceedings relate to the FDVL Review and the ACTU claim. We are, of course, not confined to the terms of the ACTU claim and, subject to according interested parties procedural fairness, we may determine the matter other than in the terms sought by the ACTU (s.599 of the FW Act).

[66] Ai Group contends that the ACTU claim is not permitted by s.55 of the FW Act and hence, if granted, would be of no effect (s.136(1)(c)). We deal with that submission in Chapter 4.5 (The NES point).

[67] We conclude that the grant of paid FDV leave in a modern award does not of itself exclude the capacity of employees to access the statutory entitlement to unpaid FDV leave and cannot properly be characterised as depriving employees of receiving, in full, the NES benefit because they have elected to access the enhanced benefit. Accordingly, it cannot be said to exclude the employees’ entitlement to unpaid FDV leave under the NES.

[68] Chapter 5 provides a brief summary of the main merit and legal arguments advanced by the ACTU, ACCI and Ai Group. Background Document 1 provides a more detailed summary of the parties’ submissions.

[69] The evidence is dealt with in Chapters 6, 7 and 8.

[70] The ACTU filed 2 expert witness statements: Dr Stanford dated 30 July 2021 and Professor Duncan dated 28 July 2021. Supplementary reports from Dr Stanford and Professor Duncan were filed on 22 December 2021. Professor Duncan and Dr Stanford were cross-examined during the hearing on 1 March 2022 and a transcript of that hearing was published on 2 March 2022. The ACTU also adduced evidence from 10 lay witnesses.

[71] The following reports were published as part of the Commission’s research program:

•  Fitz-Gibbon K, Pfitzner N, McNicol E and Rupanagudi H (2021), ‘Safe, thriving and secure: Family violence leave and workplace supports in Australia‘, Monash University, December (the Monash Report)

•  Survey analysis for the Family and domestic violence leave review 2021, December 2021 (the Employer Survey)

•  Seymour K, Hirsch R, Wendt S and Natalier K (2021), ‘Analysis of the Workplace Agreements Database for the Family and Domestic Violence Leave Review‘, Social Work Innovation Research Living Space, Flinders University, November (the WAD Analysis)

•  Seymour K, Hirsch R, Wendt S and Natalier K (2021), Family and Domestic Violence Leave Entitlement in Australia: A Systemic Review, Social Work Innovation Research Living Space, Flinders University, November (the SWIRLS Report)

[72] The Commission also published a Research Reference List (see Attachment C) and the following Information Notes:

•  Initiatives to reduce family and domestic violence in Budget 2022–23 (5 April 2022)

•  Paid Family and Domestic Violence Leave by business size (11 March 2022)

•  ACTU supplementary submission to the Family and Domestic Violence Leave Review (11 March 2022)

[73] The opposing parties elected not to call any evidence in the proceedings. We deal with the consequences of the opposing parties’ election in Chapter 6.2 noting that a party asserting a particular fact or consequence can be said to bear the evidentiary burden of adducing or pointing to evidence which supports that assertion.47F⁴⁸

[74] The balance of Chapter 6 deals with the reports published as part of the Commission’s research program and the parties’ comments on that research. We then deal with some data on the prevalence and impacts of FDV and the results of the Workplace Gender Equality Agency’s (WGEA) 2020-21 employer census. The evidence in respect of the cost of the ACTU claim is addressed in Chapter 7.

[75] Our findings on the evidence are set out in Chapter 6.6, Chapter 7.5 and the principal findings are set out in Attachment E. In brief summary, we find that FDV is ubiquitous, disproportionately affects women, has increased during the COVID-19 pandemic, and has a significant adverse effect on those who experience it as well as their families and the general community. We also find that FDV has a real and tangible impact in the workplace, and that women who experience FDV have a more disrupted work history, lower personal incomes, more frequent changes of jobs, and are more likely to be employed in casual and part-time work than women with no experience of violence. We find that FDV is both a cause and consequence of gender inequality, and we affirm the finding made in the March 2018 FDVL Decision that employees who experience FDV often face financial difficulties as a result, such as relocation costs, or becoming a sole parent, and may suffer economic harm as a result of disruption to workplace participation.

[76] In relation to the provision of paid FDV entitlements in enterprise agreements, and over award arrangements we find that there has been a sharp rise in the availability of paid FDV leave in the past 5 years. A substantial proportion of the Australian workforce now has access to paid FDV leave. We find that the provision of 10 days paid FDV leave is an emerging industrial standard in bargaining and over-award arrangements. We find that such an entitlement, where provided, provides significant assistance to those experiencing FDV in that it helps individuals to maintain their economic security, to access relevant services and to safely exit to a life free from violence. We also find that the introduction of paid FDV leave is likely to be of some, albeit difficult to quantify, benefit to employers through reducing absenteeism and lost productivity caused by FDV.

[77] In Chapter 7.4, we assess the expert evidence adduced by the ACTU concerning the cost of its claim and conclude that the evidence supports a finding varying modern awards in accordance with the provisional model term for paid FDV leave which we identify in Chapter 8.4 would have no significant adverse impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. At the enterprise level, we find that although the cost impact on employers will vary, it is unlikely to be substantial given the evidence concerning the low employee utilisation rate of access to the entitlement and the existence of at least some offsetting benefits to employers.

[78] We address the general case advanced by the ACTU for a paid FDV leave entitlement, and the cases mounted in response by the opposing parties in Chapter 8.2 and conclude that the merits strongly favour a paid FDV leave entitlement. We find that:

•  FDV is a workplace issue that requires a workplace response;

•  paid FDV leave is a critical mechanism for employees to maintain their employment and financial security while dealing with the effects of the FDV;

•  the financial circumstances of employees who have experienced FDV may make it impracticable for them to access the existing unpaid entitlement, with the consequences that they make not be able to relocate, attend court proceedings, and obtain medical treatment and other forms of support, and this may inhibit such employees from leaving violent relationships;

•  the current minimum safety net is, accordingly, not fair or relevant;

•  paid FDV leave is not simply ‘a matter for government’, and the Commission’s jurisdiction to establish additional leave entitlements in modern awards has been properly invoked by the ACTU claim;

•  that other social issues are not currently dealt with in modern awards is not a reason not to provide for paid FDV leave if the merits otherwise justify it; and

•  we are not persuaded that the issue of FDV should be left to the enterprise level and left unregulated by modern awards.

[79] In Chapter 8.3, we deal with the various elements of the ACTU’s claim: the quantum of the leave entitlement; whether the entitlement should extend to casual employees; whether the definition of FDV should be expanded as proposed by the ACTU or remain consistent with s.106B(2) and (3) of the FW Act; the accrual and accumulation of FDV; the rate of pay for FDV leave when it is taken, and the ACTU’s claim for an additional 5 day’s unpaid FDV leave per occasion once paid leave is exhausted.

[80] In Chapter 8.4 we set out our provisional view that a model FDV leave term should have the following characteristics:

1. Full time employees and, on a pro-rata basis part-time employees, should be entitled to 10 days paid FDV leave per year.

2. The entitlement to 10 days paid FDV leave per year should accrue progressively across the year in the same way as for personal/carer’s leave accrues under the NES, with accrual occurring accordingly to the methodology articulated by the High Court in Mondelez Australia Pty Ltd v AMWU & Ors48F⁴⁹. The entitlement should accumulate from year to year, but subject to a ‘cap’ whereby the total accrual does not exceed 10 days at any given time.

3. The FDV leave entitlement should be accessible in advance of an entitlement to such leave accruing, by agreement between an employer and employee.

4. The FDV leave entitlement should operate on the basis that it is paid at the employee’s ‘base rate of pay’ as defined in s.16 of the FW Act.

5. The definition of ‘family and domestic violence’ should be in the same terms as the definition in s.106B(2) of the FW Act (and not extend to FDV perpetrated by a member of the employee’s household who is not related to the employee).

6. In all other relevant respects the model FDV leave term should reflect the terms of s.106B.

[81] We reject the element of the ACTU claim which seeks an additional period of 5 days’ unpaid FDV leave on a per occasion basis and have formed the provisional view that paid FDV leave not apply to casuals.

[82] In Chapter 9 we make our provisional assessment on the modern awards objective, at a ‘global’ level. We accept that we must consider any specific circumstances raised in respect of each modern award and be satisfied that any proposed variation to an award is necessary to ensure that that award achieves the modern awards objective. The award-by-award process will commence once we have finalised the content of the proposed model term. The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)-(h). At a global level of assessment, it is our provisional view that the insertion of the provisional model term for 10 days paid FDV leave is necessary to achieve the modern awards objective.

[83] In Chapter 10 we set out our conclusion, noting that in Chapter 4.3 we accepted that our reasons would include a consideration of the March 2018 FDVL Decision and the facts and circumstances which have occurred since the implementation of that decision.

[84] Our consideration of the March 2018 FDVL Decision is set out in Chapters 4, 5 and 8. In various parts of our decision we reference the facts and circumstances which have occurred since the implementation of the March 2018 FDVL Decision; including:

(i) The introduction of an NES entitlement to 5 days unpaid FDV leave;

(ii) The COVID-19 pandemic;

(iii) The sharp rise in the availability of paid FDV leave in the past 5 years. A substantial proportion of the Australian workforce now has access to paid FDV leave and the provision of 10 days’ paid FDV leave is an emerging industrial standard in bargaining and over-award arrangements.

(iv) Various Government initiatives to address FDV and its consequences;

(v) The House Committee Report;

(vi) The papers published as part of the Commission’s research program and the evidence they contain;

(vii) The expert evidence on the cost of the ACTU claim.

[85] As to matter (vii), the material before us addresses the lacuna in the evidence regarding the costs of paid FDV leave identified in the July 2017 Majority Decision.

[86] ACCI and Ai Group did not contest the proposition that paid FDV leave is desirable or at the very least is beneficial for some employees.

[87] The contested issue is not about whether paid FDV leave is desirable or beneficial to employees – it is about whether it is necessary to vary modern awards to achieve the modern awards objective by providing for paid FDV leave.

[88] We then refer to our conclusion in Chapter 8.2.6, that the ACTU has made good its ‘overarching premise’ advanced that FDV is a workplace issue that requires a workplace response and that paid FDV leave is a critical mechanism for employees to maintain their employment and financial security, while dealing with the consequences of FDV. We also refer to our conclusion that the merits strongly favour the provision of an additional FDV leave entitlement in the terms of the provisional model FDV leave term (see Chapter 8.4). And, to our provisional view that the insertion into modern awards of the provisional model FDV leave term is necessary to achieve the modern awards objective.

[89] Finally, in Chapter 11, we set out the next steps to be taken in the proceedings:

1. The parties are to formulate a draft model FDV leave term based on our provisional views in Chapter 8.4. The formulation of such a draft term will be without prejudice to a parties’ ability to challenge any of our provisional views. The proposed draft model terms are to be filed by 4:00pm Friday 17 June 2022;

2. The parties are to confer and submit draft directions in respect of the finalisation of these proceedings. Such directions are to:

(i) provide an opportunity for the parties to express a view on the draft model FDV leave terms proposed by other parties and the provisional views we express in Chapter 8.4 about the content of that term; and

(ii) provide the Commonwealth Government an opportunity to clarify its intentions regarding any amendment to the NES, should it choose to do so.

[90] The draft directions are to be filed by no later than 4:00pm Friday 1 July 2022.

3. The ACTU claim

[91] The form of the ACTU’s claim has been amended during the course of these proceedings.

[92] As noted at [2], the ACTU filed a submission and proposed variation to modern awards on 30 July 2021. The Amended Claim and Further Amended Claim were filed on 22 February 2022 and 28 March 2022 respectively. The Amended Claim and the Further Amended Claim sought to clarify drafting and other issues that arose during the course of the proceedings and did not alter the substance of the ACTU claim.

[93] The essence of the ACTU claim is that modern awards be varied to provide all employees with 10 days’ paid FDV leave in a 12-month period and up to 5 days’ unpaid FDV leave on a per occasion basis.

[94] The Further Amended Claim is modelled on the current NES entitlement, with the following differences (clause references are as set out in the Further Amended Claim):

(a) it provides for 10 days’ paid FDV leave: (cl.A(1)) which is available in full at the start of each 12-month period of the employee’s employment; does not accumulate from year to year, and is available in full to part-time and casual employees (cl.A(2). The clause also provides that the employer and employee may agree that the employee may take more than 10 days of paid FDV leave (1AA).

(b) for a full-time employee, leave is payable at the rate of pay the employee would otherwise have earned (including any applicable incentive-based payments and bonuses; monetary allowances; shift loadings, penalty rates, rostered overtime, allowances and other entitlements) had the employee not taken paid family and domestic violence leave (cl.C(1))

(c) for a part-time employee, leave is payable at the greater of: (i) the rate of pay the employee would otherwise have earned (including any applicable incentive-based payments and bonuses; monetary allowances; shift loadings, penalty rates, rostered overtime, allowances and other entitlements) had the employee not taken paid family and domestic violence leave; or (ii) a daily rate calculated based on the average weekly pay received by the employee in the previous 6 weeks, or where the employee has been employed for less than 6 weeks, for the duration of their employment. The daily rate is calculated by dividing the employee’s average weekly pay by 5 (cl.C(2))

(d) for a casual employee with rostered or agreed hours, leave is payable at the rate of pay that the employee would otherwise have earned (including any applicable incentive-based payments and bonuses; monetary allowances; shift loadings, penalty rates, rostered overtime, allowances and other entitlements) had the employee not taken paid family and domestic violence leave (cl.C(3))

(e) for all other casual employees, leave is payable at a daily rate calculated based on the average weekly pay received by the employee in the previous 6 weeks, or where the employee has been employed for less than 6 weeks, for the duration of their employment. The daily rate is calculated by dividing the employee’s average weekly pay by 5 (cl.C(4))

(f) upon exhaustion of the paid leave entitlement, employees are entitled to up to 5 days’ unpaid FDV leave on each occasion for the purposes set out in cl.B(1): (cl.D(1)). The clause also provides that the employer and employee may agree that the employee may take more than 5 days of unpaid FDV leave to deal with the impact of FDV (cl.D(2))

(g) employees may take FDV leave if they are experiencing FDV; they need to do something to deal with the impact of the FDV, and it is impractical for them to do that thing outside their hours of work (cl.B(1)). However, the word ‘ordinary’ (in s.106B(1)(c) of the FW Act) is removed from the clause, to clarify that FDV leave is not limited to matters that are impractical to deal with outside employees’ ‘ordinary’ hours of work. 49F⁵⁰ The ACTU also proposes an addition to Note 1 to cl.B(1) (which is based on Note 1 to s.106B(1)) to clarify that attending appointments with medical, financial or legal professionals are examples of actions that may be covered by the provision and to replace the word ‘are’ with ‘include’ in the following sentence in the Note: ‘Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) are include …', and

(h) the definition of ‘family and domestic violence’ is expanded to include violent, threatening or other abusive behaviour by a member of an employee’s household, in addition to a close relative of an employee (cl.B(2)).

[95] The Further Amended Claim is set out at Attachment B.

4. The Legislative Framework and Legal Issues

4.1 General observations

[96] Under Part 2-3 of the FW Act, the Commission has the power to make, vary or revoke modern awards either on the Commission’s own motion or in response to an application. Modern awards set minimum terms and conditions for national system employees in particular industries or occupations. The FW Act sets out the modern awards objective which 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 certain social and economic factors. The FW Act also prescribes what may, must and must not be included in modern awards. This chapter of the decision sets out some general observations about the Commission’s modern awards powers.

[97] The general provisions relating to the performance of the Commission’s functions also apply to these proceedings.50F⁵¹ Section 578(a) provides that in performing functions and exercising powers under a part of the FW Act the Commission must take into account the object of the FW Act and any particular objects of the relevant part. The objects of Part 2-3 is expressed in s.134, the modern awards objective. The objective of the FW Act is set out in s.3, in particular s.3(g) provides:

‘The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(g) acknowledging the special circumstances of small and medium-sized businesses.’

[98] These proceedings arose out of the 4 yearly review of modern awards conducted under s.156 of the FW Act (the 4 Yearly Review).

[99] On 12 December 2018, s.156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the 4 Yearly Review Amending Act) with effect from 1 January 2018. Under the application and transitional provisions of the 4 Yearly Review Amending Act, a review of an award that commenced but was not completed before 1 January 2018 can continue under the terms of the repealed provisions. 51F⁵² The FDVL Review is proceeding pursuant to these transitional provisions.

[100] In the March 2018 FDVL Decision the Full Bench made the following observations about the operation of s.156:

‘Subsection 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’.

Section 156 clearly delineates what must be done in a Review, what must not be done and what may be done. Further, where the legislative intent of the section is to qualify a discretion this is done expressly, as in s.156(3) - the Commission may vary modern award minimum wages ‘only if’ it is satisfied that the variation is justified by work value reasons. This may be contrasted with the discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, which is expressed in general, unqualified, terms.

If a power to decide is conferred by a statute and the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the scope and purposes of the legislation will ordinarily be implied. However, a number of provisions of the Act which are relevant to the Review operate to constrain the breadth of the discretion in s.156(2)(b)(i). In particular, the Review function is in Part 2-3 of the Act and hence involves the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)). It follows that the ‘modern awards objective’ in s.134 applies to the Review. Section 138 (achieving the modern awards objective) also applies.’52F⁵³ [footnotes omitted]

[101] These observations are relevant to the present proceedings.

[102] In addition, the ACTU claim is made under s.157 of the FW Act. Under s.157(1), the Commission may only make the variations sought by the ACTU if it is satisfied that the variations are ‘necessary to achieve the modern awards objective’.

[103] The ‘modern awards objective’ is defined in s.134(1) as requiring the Commission ‘to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account …’ the matters at ss.134(1)(a) to (h) (the s.134 considerations).

[104] Section 138 of the FW Act emphasises the importance of the modern awards objective in the context of both the 4 Yearly Review and in considering applications under s.157; it states:

‘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.’

[105] There is a distinction between what is ‘necessary’ and what is merely ‘desirable’. Necessary means that which ‘must be done’; ‘that which is desirable does not carry the same imperative for action’.53F⁵⁴

[106] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances of the particular modern award, the terms of any proposed variation and the submissions and evidence.54F⁵⁵ Reasonable minds may differ as to whether a proposed variation is necessary (within the meaning of s.138), as opposed to merely desirable.55F⁵⁶

[107] The ‘modern awards objective’ and the parties’ submissions in respect of the relevant s.134 considerations are dealt with in Chapter 9 of this decision.

[108] While the considerations in ss.134(a)-(h) inform the evaluation of what might constitute a ‘fair and relevant minimum safety net of terms and conditions’, they do not necessarily exhaust the matters which the Commission might consider to be relevant to the determination of a fair and relevant minimum safety net. The range of relevant matters ‘must be determined by implication from the subject matter, scope and purpose of the’ FW Act.56F⁵⁷ 

[109] In the 4 Yearly Review of Modern Awards – Penalty Rates57F⁵⁸ (Penalty Rates Decision) the Full Bench summarised the general propositions applying to the Commission’s task in the 4 Yearly Review, as follows:

‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

•  the legislative context which pertained at that time may be materially different from the Fair Work Act 2009 (Cth);

•  the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

•  the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’58F⁵⁹

[110] The Commission’s task was described by the Full Court of the Federal Court as follows:

‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. ...

… it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’ 59F⁶⁰

[111] In the same decision, the Court also said: ‘... the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective.’60F⁶¹

[112] The observations set out above have been made in a number of Commission decisions throughout the 4 Yearly Review and are uncontentious. These observations are also apposite to the FDVL Review and our consideration of the ACTU claim in these proceedings.61F⁶²

4.2 The ‘scope’ of the proceedings

[113] In its submission of 4 February 2022, Ai Group submits that the current proceedings should be limited to:

‘… the ACTU Claim, the Review (as particularised above) and the material advanced by interested parties in relation to the same. These proceedings are not a general inquiry into the issue of FDV, its impact on employees or the implementation of measures other than FDVL and access to paid personal / carer’s leave. Accordingly, they should not be conducted as such.’62F⁶³

[114] Background Document 1 sought clarification as to the import of Ai Group’s submission and posed a number of questions to Ai Group.63F⁶⁴

[115] In response, Ai Group submits that:

‘(a) These proceedings relate to the FDVL Review and the ACTU Claim.

(b) The scope of the FDVL Review has been articulated by the Commission by reference to three questions, all of which relate to the provision of leave.

(c) The ACTU Claim is for paid FDV leave and unpaid FDV leave, in addition to the unpaid FDVL entitlement prescribed by the NES.

(d) The scope of these proceedings should be confined to the above matters. That is, the matters considered and the possible outcomes that may flow from these proceedings should be limited to the potential provision of paid FDVL and further unpaid FDV leave. It should not involve a consideration of whether awards should, in some other way, deal with the issue of FDV.’64F⁶⁵

[116] Ai Group submits that the answer to Background Document 1 Q4 – ‘Is Ai Group contending that the broad context – including the impact of FDV on employees and on their employment – is not relevant in the present proceedings?’ is: ‘[n]o, to the extent that that context is relevant to the matters outlined at paragraph (d) above.’65F⁶⁶

[117] In relation to Background Document 1 Q5 – ‘Is Ai Group contending that the Full Bench may only have regard to “material advanced by interested parties”?’, Ai Group contends that the Full Bench may only have regard to ‘material advanced by interested parties’ as well as the material cited on the Commission’s Research Reference List, subject to its submissions in relation to Background Document 1 Q6.66F⁶⁷

[118] In relation to Background Document 1 Q6− ‘Is it contended that the Full Bench cannot have regard to the reports published as part of the Commission’s research program relating to these proceedings or the material referred to as the Commission’s Research Reference List? … Further, if that is Ai Group’s submission, what is the legislative/legal basis for the submissions put?’, Ai Group submits that if the Commission intends to rely on specific parts of the Research Reference List to make findings or draw conclusions that have not been sought by the parties, it should first be afforded an opportunity to be heard in relation to those proposed findings/conclusions; and subject to paragraph (d) above.67F⁶⁸

[119] In relation to Background Document 1 Q7 – ‘Ai Group’s submissions refer extensively to a range of measures and initiatives taken with respect to FDV by various governments as a reason not to award paid FDV leave ... How does this align with the submission that the proceedings are not ‘a general inquiry into … the implementation of measures other than FDVL …?’, Ai Group refers to the explanation of its submission cited at [49] of Background Document 1 and paragraph (d) above. Paragraph [49] sets out Ai Group’s submission that the scope of the current proceedings is ‘limited’, in particular that it should be limited to:

‘… the ACTU Claim, the Review (as particularised above) and the material advanced by interested parties in relation to the same. These proceedings are not a general inquiry into the issue of FDV, its impact on employees or the implementation of measures other than FDVL and access to paid personal / carer’s leave. Accordingly, they should not be conducted as such.’68F69

[120] Ai Group submits that the element of its submission cited in Background Document 1 Q7 should read as follows: a general inquiry into … the implementation of measures other than FDV leave in modern awards.69F⁷⁰

[121] We accept that these proceedings relate to the FDVL Review and the ACTU claim. We are, of course, not confined to the terms of the ACTU claim and, subject to according interested parties procedural fairness, we may determine the matter other than in the terms sought by the ACTU (s.599 of the FW Act). We also accept that to the extent we propose to make evidentiary findings that have not been sought by the parties, procedural fairness would require that interested parties be afforded an opportunity to be heard in respect of any such proposed findings.

4.3 The ‘approach’ to the proceedings

[122] ACCI also raises an issue about our approach to the proceedings, submitting that in assessing the ACTU claim, the Full Bench “will be required to assess the ACTU claim as if it were a review of the current FDV leave framework”70F⁷¹ [Emphasis added]:

‘This is so because, even if the Unlimited Unpaid/10 Day Paid Claim is assessed ‘independently’ from the process of the Review, the Unlimited Unpaid/10 Day Paid Claim has been made in a context where an entitlement to 5 days unpaid leave was introduced less than four years ago. As at mid-2018, the Full Bench considered that it was not necessary to fulfil the modern awards objective to introduce paid domestic violence leave at all, let alone 10 days paid leave.

Either considered in the context of a review or considered as a claim remade less than four years after it was declined, in assessing the Unlimited Unpaid/10 Day Paid Claim, the Full Bench must consider whether anything has changed since 2018 that would require a reassessment of its finding in 2018 i.e. that 10 days paid leave was not required to fulfil the modern awards objective.’71F⁷²

[123] The submission advanced by ACCI appears to suggest that the Commission must be satisfied that there has been a material change in circumstances since the implementation of the March 2018 FDVL Decision as a condition precedent to making any decision to grant paid FDV leave.

[124] This issue was canvassed in Background Document 1 where the parties were invited to comment on the following propositions:

‘1. In circumstances where s.156 applies, that section imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The 4 Yearly review is conducted on the Commission’s own motion and is not dependent upon an application of a specified party. In that sense the 4 Yearly review may be contrasted with other powers and functions conferred on the Commission by the FW Act, which can only be exercised or performed on the application of a specified party (e.g. see the approval and variation of enterprise agreements: ss.186(1) and 211(3); majority support determinations: s.243(1); and equal remuneration orders: s.302(3)).72F73

2. In conducting the 4 yearly review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the FW Act. Importantly, the Commission is not bound by the rules of evidence and procedure (s.591) and may inform itself in relation to any matter before it in such manner as it considers appropriate (s.590(1)).73F⁷⁴

3. The Commission is not constrained by the terms of a particular application.74F⁷⁵ The Commission is not required to make a decision in the terms applied for (s.599) and, in a 4 yearly review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions, such as ss.134, 138 and 578.75F⁷⁶

4. In the present proceedings the facts and circumstances which have occurred since the implementation of the March 2018 Decision are relevant to the FDVL Review and to the Commission’s consideration of the ACTU’s claim; but they are not determinative.

5. A decision to vary a modern award may be warranted if it has been established that there has been a material change in circumstances since the issue which is the subject of the variation was last considered by the Commission but the Commission’s power to do so is not conditioned on it being satisfied that there has been such a change in circumstances.’

[125] The ACTU did not contest any of the above propositions and submits ‘it is erroneous to suggest that the Commission must not vary the terms of an award unless it is satisfied that there has been a material change in circumstances.’ In support of this submission the ACTU relies on the Full Bench’s reasoning in the Penalty Rates Decision as upheld by the Full Federal Court in SDA v the Australian Industry Group.76F⁷⁷

[126] Similarly, Ai Group did not contest any of the propositions set out above.77F⁷⁸

[127] ACCI subsequently sought to clarify the substance of its earlier submission and submits that it was not the intent of its submission to suggest that the Commission must be satisfied that there has been a ‘material change in circumstances’ since the implementation of the March 2018 FDVL Decision as a condition precedent to making any decision to grant paid FDV leave.78F⁷⁹

[128] ACCI submits that it did not seek to advance a submission that the lack of change in circumstances presents a jurisdictional impediment to the granting of the claim.79F⁸⁰ ACCI submits that in 2016 to 2018, a Full Bench of the Commission considered ‘a very large and comprehensive case’ brought by the ACTU, seeking, in broad terms, the same entitlement that is sought now. It submits that at that time, the Full Bench considered evidence and arguments advanced by the parties and arrived at a decision that the introduction of 10 days’ paid FDV leave was not necessary to satisfy the modern awards objective.80F⁸¹

[129] ACCI clarified that its submissions that the Full Bench must consider ‘whether anything has changed since 2018’ merely amounts to the proposition that there should be some justification or rationale for a different decision by the Full Bench in 2022 than the one arrived at in 2018.81F⁸²

[130] ACCI argues that the fact that a proponent of a variation does not need to establish a ‘material change in circumstance’, does not mean it does not have to bring a compelling and persuasive case.82F⁸³ While ‘reasonable minds may differ’ whether a proposed variation is necessary within the meaning of s.138, ACCI submits that this principle would not extend to allowing an arbitrary ‘change of mind’ by the Full Bench, such that 4 years later it arrives at a different answer to the same question posed in 2018 without a coherent basis for doing so.83F⁸⁴

[131] ACCI submits that something of relevance would need to have changed between 2018 and 2022 in order to justify a different answer in 2022. As to what that change could be, ACCI submits that there are likely to be 3 possibilities:

(i) In circumstances where the relevant ‘circumstances’ have not changed between 2018 and 2022, the Full Bench could well determine that it made an incorrect decision in 2018. ACCI submits this is unlikely and notes that although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions.84F⁸⁵

(ii) In circumstances where the relevant ‘circumstances’ have not changed between 2018 and 2022, the Full Bench could nonetheless determine that the evidence brought in support of the ACTU claim in 2022 justifies a different result to that reached in 2018 i.e. while the evidentiary case of the ACTU was insufficient in 2018, the evidentiary case in 2022 establishes that a different result is justified. For the reasons already advanced in these and other submissions, ACCI thinks that this is also unlikely based on the material filed.85F⁸⁶

(iii) The relevant ‘circumstances’ for assessment could have changed such that a different outcome is warranted in 2022 from that arrived at in 2018.86F⁸⁷

[132] ACCI contends that in each of the 3 scenarios set out above, the Full Bench would need to justify both the quantum of the entitlement sought and the fundamental shift in the entitlement from an unpaid entitlement to a paid (and unlimited unpaid) one.87F⁸⁸ This would be in addition to justifying the other distinctive aspects of the entitlement including the change of the definition of ‘family and domestic violence’, the unusual pay rate, ‘upfront’ paid leave accrual method and the fact it would entail the almost unprecedented provision of paid leave to casuals.88F⁸⁹

[133] ACCI submits that, given the extent of the change proposed, there would need to be a compelling reason to vary an entitlement that was considered sufficient to satisfy the modern awards objective only 4 years ago.89F⁹⁰ It submits that there is no evidence to so move the Full Bench; noting this is a submission going to how the Full Bench might undertake its reasoning process rather than a jurisdictional question.90F⁹¹

[134] In reply, the ACTU submits that ACCI’s revised formulation remains problematic ‘because it simply dresses up the material change in circumstances test in different clothing, converting it from a jurisdictional threshold to a merit threshold, whereas … the Commission’s exercise of its power in this review is not so constrained’.91F⁹² The ACTU also contends that ACCI’s submission mischaracterises the March 2018 FDVL Decision. We return to that point shortly.

[135] The ACTU acknowledges that ‘the events between the implementation of the 2018 Decision and the current date are clearly relevant to the FWC’s inquiry but … the terms on which the Commission may exercise its power to vary a modern award repose solely in the terms of s.157: the variation must be necessary to achieve the modern awards objective.’92F⁹³ Contrary to ACCI’s submission that the Full Bench ‘must consider whether anything has changed since 2018’, the ACTU submits that ‘there is no additional constraint on the exercise of the Commission’s modern award powers to the effect that a moving party must demonstrate there has been a material change in circumstances (or any other expression of that concept) since the 2018 Decision in order to justify the proposed variation’.93F⁹⁴

[136] This matter was the subject of further debate during the course of closing oral argument which gave rise to some measure of agreement between ACCI and the ACTU.94F⁹⁵

[137] For our part, we accept the propositions set out earlier, at [124]. In short, our task is to assess the evidence and submissions against the statutory tests, principally whether a modern award provides a fair and relevant safety net of terms and conditions and whether a proposed variation is necessary in order for the award to achieve the modern awards objective.

[138] In its closing oral submission, ACCI advanced what it characterised as a ‘fundamental proposition’, that is:

‘decisions of the Full Bench should generally be followed in the absence of cogent reasons for departing from them … if the Full Bench is to come to a different decision now, it should provide reasons for doing so’.95F96

[139] The modern awards objective requires that the Commission ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions, taking into account the s.134 considerations. One of the s.134 considerations is the need to ensure a ‘stable’ modern award system (s.134(1)(g)). This consideration was the subject of some debate in the proceedings which led to the Preliminary Jurisdictional Issues decision in which the Full Bench said:

‘The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances ... where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.’96F97

[140] In conducting the FDVL Review, the Commission has proceeded on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made and has had regard to the relevant historical context. The adoption of this prima facie position is an element of the general proposition that previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.

[141] Although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions. In another context, 3 members of the High Court observed in Nguyen v Nguyen:

‘Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth per Aickin J at 620.’97F98

[142] While the Commission is not a court, the public interest considerations underlying these observations have applied with similar, if not equal, force to appeal proceedings in the Commission.98F⁹⁹ As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (Cetin)99F¹⁰⁰:

‘Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so.’

[143] These policy considerations support the approach the Commission has taken in the FDVL Review; that is, it has taken into account previous decisions relevant to any contested issue. However, the particular context in which those decisions were made may provide a cogent reason for not following a previous Full Bench decision. That proposition is apposite in the present proceedings.

[144] We consider that the earlier FDV leave decisions are more nuanced than suggested by ACCI in its submissions, in particular the rejection of the ACTU’s claim for 10 days’ paid FDV leave in the earlier proceedings was somewhat qualified.

[145] While the July 2017 Majority Decision concluded that varying modern awards to include the ACTU’s clause was not necessary to ensure that awards achieved the modern awards objective, it went on to say:100F¹⁰¹

‘This is not to say we reject the ACTU’s submissions and the evidence called to support those submissions that family and domestic violence is a workplace issue which requires a workplace response …

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.’ [Emphasis added]

[146] Further, as is apparent from the conclusion to the March 2018 FDVL Decision (see [8] above), it is patently clear that in introducing 5 days’ unpaid FDV leave the Full Bench was taking ‘a cautious regulatory response’ to the issue of FDV and it proposed to revisit this issue in June 2021 including ‘the question of whether provision should be made for paid family and domestic violence leave’. In short, the ratio of the March 2018 FDVL Decision did not involve any rejection of the merits of paid FDV leave.

[147] The March 2018 FDVL Decision therefore does not provide a datum point for our consideration in these proceedings and nor does it provide some sort of merits hurdle.

[148] As we have already stated, we accept that variations to modern awards must be justified on their merits. The introduction of a paid FDV leave entitlement into modern awards would be a significant change and we accept that if we were to arrive at such a decision, we would clearly state our reasons for doing so. Those reasons would include a consideration of the March 2018 FDVL Decision and the facts and circumstances which have occurred since the implementation of that decision.

4.4 An award-by-award approach?

[149] The ACTU contends that there is nothing in the terms of s.157 of the FW Act, or in the Commission’s modern award powers which apply to the conduct of the FDVL Review, that would preclude the Commission from taking an incremental approach to considering an application to vary all modern awards: first at a ‘global’ level, and later, any necessary award-by-award analysis.101F¹⁰²

[150] ACCI and the Ai Group submit that s.138 of the FW Act requires that each modern award be analysed separately to ascertain that it meets the statutory requirements.102F¹⁰³

[151] As noted above, the FDVL Review is continuing under the terms of repealed s.156 pursuant to the transitional arrangements in the 4 Yearly Review Amending Act, as well as pursuant to s.157 of the FW Act. Both ss.156 and 157 involve the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)) and the ‘modern awards objective’ in ss.134 and 138 applies to the provisions.

[152] Section 156 imposed an obligation on the Commission to review all modern awards and s.156(5) required each modern award to be reviewed in its own right. This was intended to ensure that the 4 Yearly Review was conducted ‘by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations’.103F¹⁰⁴ 

[153] However, s.156(5) did not prevent the Commission from reviewing 2 or more modern awards at the same time, nor did it confine the review of a modern award to a single holistic assessment of all of its terms.104F¹⁰⁵

[154] Consistent with the approach taken by the Commission in various ‘common issue’ proceedings during the course of the 4 Yearly Review, Background Document 1 raised the following option regarding the process to be followed in these proceedings:

‘1. The Full Bench will consider the substantive merits of the ACTU’s Claim and whether modern awards should make any further provision for FDV leave. If the merits weigh in favour of the ACTU’s Claim, in whole or part, then the Full Bench will express a provisional view as to the terms of any entitlement to paid FDV leave/additional unpaid FDV leave. The Full Bench will also express a provisional view about whether it is appropriate to include such a provision in modern awards, on the basis that it is necessary to achieve the modern awards objective. If the Claim fails on the merits and the Full Bench decides that no variation to modern awards is necessary, that will be the end of the proceeding.

2. If a provisional view is expressed in accordance with step 1 above then the Full Bench will formulate a draft model term. Interested parties will have an opportunity to comment on the draft model term.

3. The content of any model term will then be finalised.

4. After the content of any model term has been finalised parties will be given an opportunity to make submissions on the provisional view that a variation to modern awards to insert the model term is necessary to achieve the modern awards objective in the context of each particular award.

5. Parties will have the opportunity to make submissions on any draft variation determinations before they are finalised in respect of relevant awards.’

[155] The ACTU submits that the approach set out above is appropriate and that ‘it is consistent with the statutory framework, is efficient, and affords procedural fairness to interested parties.’105F¹⁰⁶

[156] Ai Group’s primary position is that the material before the Commission does not establish that the introduction of paid FDV leave and/or the ACTU claim is necessary to achieve the modern awards objective, that the Commission should find as such and the proceedings brought to an end on that basis. However, Ai Group does not otherwise oppose the process set out above.106F¹⁰⁷

[157] ACCI opposes a process whereby the Commission determines that a particular model term should be inserted into all modern awards and then seeks submissions from parties to ‘rebut’ that provisional view in individual awards, in the absence of which the model term would be inserted.107F¹⁰⁸ ACCI submits that to undertake such an approach may fail to properly assess whether a variation is necessary within the meaning of s.157 in respect of each individual award.108F¹⁰⁹ ACCI submits that s.157 requires the Commission to make an assessment at an award-specific level109F¹¹⁰ and that while the Commission could determine the framework for a model clause prior to making an assessment as to whether the insertion of that model term was necessary in any particular award, the ‘assessment of necessity’ within the meaning of s.138 needs to be undertaken on an award-by-award basis, having regard to the characteristics of the particular award and the employers and employees that it covers.110F¹¹¹

[158] ACCI contends that the Commission should be ‘extremely cautious’ not to adopt an approach whereby it forms a provisional view that a particular determination should be adopted into all modern awards, prior to being satisfied that making the determination is necessary to achieve the modern awards objective in relation to each particular modern award.111F¹¹² It contends that the expression of such a ‘provisional’ view would create a reverse onus in relation to the assessment as to whether the determination was necessary in a particular modern award to satisfy the modern awards objective.112F¹¹³

[159] ACCI further submits that the Full Bench should not undertake a process whereby it determines that a particular model term should be inserted into all modern awards and then seeks submissions from parties to rebut that provisional view in individual awards, in the absence of which, the model term would be inserted.113F¹¹⁴

[160] The ACTU addressed this issue further at the hearing on 8 April 2022, making 3 points:

•  There is nothing in s.157 that requires the Full Bench to make an assessment at an award-specific level, but, in any event, that is precisely what the Commission is proposing to do with its approach.

•  Given the FDVL Review is continuing under s.156, s.156(5) applies which provides that the requirement to review each modern award in its own right does not prevent the Commission from reviewing 2 or more awards at the same time.

•  Referring to its February 2022 submissions at [23]-[24], the ACTU’s position is that the process proposed by the Commission does not contravene s.156 or s.157.114F¹¹⁵

[161] Consistent with the Commission’s approach throughout the 4 Yearly Review, we do not consider that the Commission is constrained from dealing with multiple awards together, in dealing with the FDVL Review and the ACTU claim. The Commission’s usual procedural powers apply to the exercise of powers under s.157 of the FW Act. The Commission has broad powers as to the manner in which it may inform itself in relation to any matter before it.

[162] As was noted in the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 in relation to the repeal of s.156 of the FW Act:

‘After the repeal of the requirement to conduct 4 yearly reviews, the framework that remains for making, varying and revoking modern awards under Division 5 of Part 2-3 of the Act will continue to require that the FWC is satisfied that making a determination is necessary to achieve the modern awards objective. This allows the FWC to make a determination where emerging social and economic matters demonstrate that change is necessary. For example, in exercising its functions under Part 2-3, the FWC is required to take into account a range of criteria, such as the need to promote social inclusion through increased workforce participation. This requires the FWC to consider the changing labour market and the manner in which work is evolving. It must also promote flexible modern work practices and the efficient and productive performance of work, which again requires the FWC to look beyond the way work has been performed historically and to make sure the safety net of terms and conditions continues to meet community expectations.’115F116 [Emphasis added]

[163] As we have mentioned, s.156(5) required each modern award to be reviewed in the 4 Yearly Review in its own right; but s.156(5) did not prevent the Commission from reviewing 2 or more modern awards at the same time, nor did it confine the review of a modern award to a single holistic assessment.

[164] We reject ACCI’s submission that the proposed approach may fail to properly assess whether a variation of a modern award is necessary within the meaning of s.157. The process we have outlined clearly provides interested parties with an opportunity to make submissions in respect of our provisional view ‘in the context of each particular award’.

[165] In the Full Federal Court decision of Association for Employees with a Disability v Commonwealth of Australia,116F¹¹⁷ the Court dismissed the judicial review application on the grounds that it was premature—the applicant sought to challenge the Commission’s provisional views in relation to the variation of an award, which were expressed as part of an iterative and ongoing process that has not yet reached its conclusion.117F¹¹⁸ In their joint judgment, Mortimer and Abraham JJ observed:

‘In the present case, the applicant asks the Court to deal with circumstances that have not occurred (the making of a determination under s 156(2) in the terms of Attachment A to the December decision), and which on the evidence before the Court, might never happen. That is because the Commission has, first, indicated its views are provisional, second, proposes to conduct a trial to see how its “preferred approach” works in practice before reaching any concluded views and third, has demonstrated a capacity to be persuaded and change its mind.’118F119

[166] The Commission’s process here involves, as a first step, a consideration of the substantive merits of the ACTU claim and whether modern awards should make further provision for FDV leave. We will then express a provisional view as to the terms of any such entitlement and whether it is necessary to vary modern awards to include such a term. These are steps in an ‘iterative, consultative, and reflective’119F¹²⁰ process, outlined at [154], in which interested parties will be further consulted and have the opportunity to make submissions prior to any exercise of power pursuant to s.156 and/or s.157 of the FW Act. In that process will not reach any concluded views in respect of whether the variation of particular modern awards is necessary to ensure that those awards achieve the modern awards objective. A modern award will only be varied if we are so satisfied.

[167] In the Penalty Rates Decision,120F¹²¹ the Full Bench expressed some provisional views121F¹²² as to the form of the transitional arrangements in respect of the Sunday penalty rate reductions that had been determined. The Full Bench sought submissions in respect of those provisional views and ACCI advanced the following submission:

‘The burden of proof … should lie with any party wishing to depart from the Commission’s provisional views … Unions and those supporting them must bear the burden of convincing the Commission that it should depart from its provisional views on implementation.’122F123

[168] The Penalty Rates – Transitional Arrangements decision123F¹²⁴ rejected ACCI’s submissions characterising the proposition advanced as ‘misconceived’, for 2 reasons:

1. The provisional views were provided to assist those parties who wished to make submissions as to the form of the transitional arrangements; they ‘were not provided with the intention of creating an additional hurdle for those who wished to express a contrary view’.124F¹²⁵

2. It is doubtful whether the common law concept of onus of proof is relevant in Commission proceedings, particularly 4 yearly review proceedings. Ultimately, the Commission must be satisfied that a modern award is not achieving the modern awards objective and requires variation.

[169] For the same reasons we reject ACCI’s contention in the present proceedings that the expression of a provisional view that a FDV leave term be inserted into modern awards may not satisfy s.157 of the FW Act and would ‘in effect create a ‘reverse-onus’ in relation to the assessment as to whether the determination was necessary in a particular modern award to satisfy the modern awards objective.’125F¹²⁶

[170] We propose to adopt the process outlined in Background Paper 1 and set out at [154].

4.5 The NES Point

[171] In Chapter 7.2 of its submission of 4 February 2022, Ai Group contends that the ACTU claim is not permitted by s.55 of the FW Act and hence, if granted, would be of no effect (s.136(1)(c)).

[172] Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or must be included in modern awards, and terms that must not be included in modern awards. This Division also prohibits award terms that contravene s.55 (which deals with the interaction between the NES and modern awards).

[173] Section 136(1) of the FW Act provides for terms that may or must be included in a modern award, while s.136(2) prohibits the inclusion of certain terms in an award:

‘136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).’

[174] Section 136(1) provides that a modern award must only include terms that are permitted or required under ss.136(1)(a)-(d). In relation to s.136(1)(a), s.139(1)(h) in Subdivision B of Division 3 of Part 2-3 of the FW Act permits a modern award to include terms about ‘leave, leave loadings and arrangements for taking leave’. This satisfies s.136(1) of the FW Act.

[175] Section 136(2) prohibits award terms that are proscribed by Subdivision D of Division 3 of Part 2-3 of the FW Act or that contravene s.55. Subdivision D does not include any relevant proscription. Consequently, a term providing for paid FDV leave could be included in a modern award if and only if the term would not contravene s.55.

[176] Section 55 of the FW Act provides:

‘55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).’

[177] Section 55(1) provides that a modern award must not ‘exclude’ the NES ‘or any provision of’ the NES.

[178] Sections 55(2)-55(4) set out terms that may be included in modern awards. An award term providing for paid FDV leave would not be a term permitted by s.55(2) and hence s.55(3) is not relevant. Section 55(4) permits an award to include certain ‘ancillary or incidental’ terms and terms that ‘supplement’ the NES. Such terms do not contravene s.55(1) (s.55(7)). It follows that an award term providing for paid FDV leave will contravene s.55 if it excludes the NES or any provision of the NES within the meaning of s.55(1), and it is not a term permitted by s.55(4).

[179] In the Family Friendly Work Arrangements Case,126F¹²⁷ the Full Bench describes the statutory context to s.55 as follows:

‘The EM [Explanatory Memorandum] states the purpose of s.55:

‘206. Clause 55 sets out the relationship between the NES on the one hand and modern awards and enterprise agreements on the other.’

The nature of the NES is central to the context in which s.55 is to be read. Section 61 introduces the NES. Subsection 61(1) provides:

‘61 The National Employment Standards are minimum standards applying to employment of employees

(1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.’

Importantly, the ‘minimum standards’ in the NES comprise minimum employment entitlements of employees. Any obligations of an employee or ‘rights’ of an employer under the terms of the NES constitute qualifications to the employee receiving a benefit, not substantive employer benefits or rights. Accordingly, the NES only binds employers:

‘44 Contravening the National Employment Standards

(1) An employer must not contravene a provision of the National Employment Standards.

Note: This subsection is a civil remedy provision (see Part 4-1).’

In contrast, modern awards and enterprise agreements bind employers, employees and other persons to whom they apply (ss.45 and 50) …

Section 55(1) provides:

‘National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.’ [Emphasis added]

The EM states in relation to s.55(1):

‘208. The intent of the NES is that it provides enforceable minimum entitlements for all eligible employees. This is reflected in subclause 55(1), which provides that a modern award or enterprise agreement may not exclude the NES, or any part of it.

209. This prohibition extends both to statements that purport to exclude the operation of the NES or a part of it, and to provisions that purport to provide lesser entitlements than those provided by the NES. For example, a clause in an enterprise agreement that purported to provide three weeks’ annual leave would be contrary to subclause 55(1). Such a clause would be inoperative (clause 56).’

[Emphasis added]

The term ‘exclude’ is used elsewhere in the Act in specifying how the Act, and modern awards and enterprise agreements, interact with State and Territory laws (see ss.26-28).

Section 56 provides for severance:

‘56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.’

It follows that if an award or agreement term can operate so as to exclude the NES or a provision of the NES, this must be permitted by other provisions of s.55 or of the Act more broadly.’127F¹²⁸

[180] In Application by Canavan Building Pty Ltd128F¹²⁹ (Canavan), the Full Bench of the Commission stated:

‘[36] Section 55(1) of the Act relevantly provides that an enterprise agreement “must not exclude” the NES or any provision thereof. It is not necessary that an exclusion for the purpose of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES provision in express terms. On the ordinary meaning of the language used in s.55(1), we consider that if the provisions of an agreement would in their operation result in an outcome whereby employees do not receive (in full or at all) a benefit provided for by the NES, that constitutes a prohibited exclusion of the NES. That was the approach taken by the Full Bench in Hull-Moody. The correctness of that approach is also confirmed by the Explanatory Memorandum for the Fair Work Bill 2009 as follows:

“209. This prohibition extends both to statements that purport to exclude the operation of the NES or a part of it, and to provisions that purport to provide lesser entitlements than those provided by the NES. For example, a clause in an enterprise agreement that purported to provide three weeks' annual leave would be contrary to subclause 55(1). Such a clause would be inoperative (clause 56).”’129F¹³⁰

[Emphasis added and endnote omitted]

[181] Ai Group submits that the ACTU claim is not consistent with and excludes the NES.130F¹³¹ Ai Group does ‘not contend that the Commission lacks power to provide employees with new entitlements in respect of leave for purposes related to FDV or to implement in awards terms that might be properly supplementary to NES provisions relating to unpaid FDV leave; save that any such award term would need to conform with s.55 and any other legislative restrictions on the content of award terms.’131F¹³² However, Ai Group submits that ‘the specific proposal advanced by the ACTU … would not however be permissible.’132F¹³³ The issues raised by Ai Group concerning the proposed paid FDV leave entitlement in the ACTU claim (as reflected in the Further Amended Claim) are considered further below.

[182] In brief, Ai Group submits as follows:

•  The ACTU proposal would contravene s.55(1) because it would exclude the provisions of the NES dealing with unpaid FDV leave as it would mean, in practice, that award-covered employees would not access unpaid leave under the NES because they would access the alternate and substantively different scheme of paid or unpaid leave under the applicable award. This would mean that employees do not receive a benefit under the NES and it would also negate the effect of the NES provisions that provide for a scheme of unpaid FDV leave in specific circumstances.133F¹³⁴

•  Section 55 carefully and comprehensively regulates when award terms may exclude the NES and there is no provision in s.55 that generally permits award terms to exclude the NES, provided they are not detrimental to an employee or if they deliver an entitlement that might be considered more beneficial to an employee. Parties are not able to simply displace or exclude the NES or provisions of the NES in favour of alternate schemes or entitlements that might be considered more beneficial or favourable (on whatever basis that might be assessed).134F¹³⁵

•  The ACTU has proposed an independent, ‘standalone’ award-derived entitlement to paid and unpaid FDV leave that is separate and distinct to the NES entitlement. Although dealing with a similar subject matter to relevant aspects of the NES, it does not operate as an adjunct to the NES or extend an entitlement under the NES, but effectively delivers a different leave scheme to the NES entitlement.135F¹³⁶

•  The proposed clause would not be a term permitted by s.55(4)(b) as it does not supplement the NES. Ai Group concurs with the Full Bench’s view in the Family Friendly Work Arrangements Case that a supplementary term would be a term that supplements or adds to the substantive provision. The broad interpretation of the word ‘supplement’ urged by the ACTU should not be adopted. Ai Group opposes the ACTU’s apparent contention that the proposed term is a supplementary term to the NES on the basis that ‘both terms concern taking leave for the purposes of dealing with FDV’. That is not sufficient to bring it within the scope of s.55(4); there needs to be a connection between the term and the substantive legislative provision (here, ss.106A–106B). A supplementary term would not encompass terms that deliver a separate benefit to the NES (even if they relate to similar subject matter). This view is consistent with the nature of the examples of supplementary terms contained within Note 2 of s.55(4) which extend or increase the entitlement delivered by the NES. The proposed clause is not analogous to these examples.136F¹³⁷

[183] For reasons which will become apparent, we have not found it necessary to deal with those aspects of Ai Group’s s.55 submissions which deal with the unpaid FDV leave element of the ACTU claim.

[184] For its part, ACCI does not contest that the Commission ‘assuming satisfaction of the relevant jurisdictional thresholds (i.e. ss.134, 138 etc) could grant a claim modifying a NES entitlement in a modern award, by way of relevant example, by converting an unpaid NES leave entitlement to a paid form of leave’.137F¹³⁸ Further, ACCI does not suggest that the entitlements under the ACTU claim (if granted) are inconsistent in any relevant technical sense with the NES (by way of example, with respect to s.55 of the FW Act).138F¹³⁹

[185] The ACTU opposes Ai Group’s submissions and contends that its proposed variation is permitted by s.139(1)(h) of the FW Act and does not exclude the NES entitlement. If necessary, the ACTU also relies on s.55(4) on the grounds that the term, including an entitlement to paid FDV leave, is supplementary to the NES entitlement.139F¹⁴⁰

[186] It is not contested that the Commission has clear statutory power to include terms in modern awards about leave, leave loadings and arrangements for taking leave (s.139(1)(h)). Accordingly, the inclusion of an entitlement to paid FDV leave in modern awards is permitted by s.139(1)(h), which is contained in Subdivision B of Division 3 of Part 2-3 of the FW Act.

[187] Further, it is not necessary for an award term to operate in conjunction with or as an adjunct to a NES entitlement in order for it to be a permitted term.140F¹⁴¹ Section 136 relevantly provides that ‘a modern award must only include terms that are permitted or required’ by Subdivision B of Division 3 of Part 2-3 of the FW Act and must not include terms that contravene s.55 of the FW Act (ss.136(1)(a) and 136(2)(b)). Any such term is a permitted term.

[188] The issue to be determined is whether the inclusion of an entitlement to paid FDV leave in modern awards would ‘exclude’ the NES for the purposes of s.55(1) and therefore not be a permitted term pursuant to s.136(2)(b) of the FW Act.

[189] In order to determine whether a proposed award term would contravene the NES or s.55(1) of the FW Act, the nature of the benefits under the proposed award term must be identified and compared to the NES entitlement.

[190] The ‘minimum standards’ in the NES comprise minimum employment entitlements of employees. The EM to the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (FDVL Bill) includes in its outline of the FDVL Bill:

‘The inclusion of unpaid family and domestic leave in the NES would provide invaluable support to employees who are experiencing family and domestic violence.

…

The provision of this leave in the NES would recognise that employees experiencing family and domestic violence may need to undertake activities during working hours to deal with the impact of family and domestic violence, and would allow them time to do so as a minimum workplace entitlement …’141F¹⁴²

[191] The FDVL Bill’s Statement of Compatibility also explains:

‘The object of the Fair Work Act 2009 (the Act) is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians. The National Employment Standards (NES) in the Act further this object by providing a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions for employees covered by the Act.

This Bill would amend the Act to introduce an entitlement to five days of unpaid family and domestic violence leave into the NES. The new entitlement is consistent with the entitlement in the Model Clause developed by the Fair Work Commission (the Commission), as part of the 4 Yearly Review of Modern Awards (4 Yearly Review) …

…

The amendments in the Bill would assist employees affected by family and domestic violence to remain in continuous employment, which in turn would provide financial security, independence, social networks and increased self-esteem.’142F¹⁴³

…

‘The introduction of the new entitlement in the Bill promotes the right to just and favourable working conditions. An employee may be able to access existing leave entitlements in the Act in some circumstances where they are experiencing family and domestic violence (e.g. personal/carer’s leave in certain situations). However, there are a number of purposes for which an employee would not be able to access existing leave entitlements in the Act, for example, where an employee needs to urgently find accommodation for themselves or attend an appointment with a lawyer. The new entitlement would grant employees in the national system a guaranteed minimum entitlement enabling them to take time off work where they might not otherwise have any leave available.’143F¹⁴⁴

[192] Ai Group submits that the practical effect of the ACTU claim is that it would exclude or negate the NES entitlement – a scheme for unpaid leave − because award-covered employees would elect to utilise the paid leave entitlement in favour of the unpaid NES entitlement.144F¹⁴⁵

[193] Contrary to Ai Group’s submission, it does not follow that an NES provision is excluded simply because a more favourable term is included in a modern award and as a consequence, employees are more likely to use the award term than the relevant provision of the NES. As the Full Bench observed in the Family Friendly Work Arrangements Case:

‘It has been suggested that a modern award or enterprise agreement term might be considered to ‘practically exclude’ a provision of the NES, if it would result in employees utilising the award or agreement term rather than the provision of the NES. We note that any entitlement under an award or agreement that is more beneficial to employees than a minimum standard under the NES is likely to have that result. Examples would include where a term provides a higher rate of pay for periods of annual leave or personal/carer’s leave than the base rate provided for under the NES, and where a term provides for additional paid personal/carer’s leave which may be taken instead of unpaid carer’s leave provided for under the NES.’145F¹⁴⁶ [Emphasis added]

[194] The central question is whether the provisions of an award term would in their operation impact an employee’s capacity to receive (in full or at all) a benefit provided for by the NES. Even if it is assumed, as contended by Ai Group, that employees will not receive a benefit under the NES – an entitlement to unpaid FDV leave – because they have chosen to access a more beneficial award entitlement to paid FDV leave, that outcome is based on the personal preference of the individual employees. It is not a limitation on the operation of the NES entitlement itself.

[195] In sum, the grant of paid FDV leave in an award does not of itself exclude the capacity of employees to access the statutory entitlement to unpaid FDV leave and cannot properly be characterised as depriving employees of receiving, in full, the NES benefit because they have elected to access the enhanced benefit. Accordingly, it cannot be said to exclude the employees’ entitlement to unpaid FDV leave under the NES.

[196] Ai Group also submits that the ACTU claim is not supplementary to the operation of the NES entitlement in Subdivision CA of Division 7 of Part 2-2 of the FW Act, but instead ‘would operate as an entirely separate and distinct scheme, that does not appear to have any touch point or source of commonality with the unpaid leave entitlement contained in the NES’.146F¹⁴⁷ In closing oral argument, Ai Group further submits that the ACTU has:

‘… proposed a separate award scheme which is something entirely different to the NES.  It operates differently.  It deals with broadly similar subject matter, but it is different.  It's a different regime and it doesn't interconnect in any way.  It doesn't extend the NES entitlement in some way that might be considered supplementary, drawing analogies to the examples of the supplementary terms.  It just operates separately and on its own.’147F¹⁴⁸

[197] However, Ai Group also made clear that it was ‘not saying that you couldn't reframe an entitlement to paid leave, if they're calling for it of course, in a manner that more squarely supplemented the NES.  And we accept in that context … that the Awards do permit the Commission to regulate the matters related to leave - matters about leave’.148F¹⁴⁹

[198] In view of our conclusion above that the grant of the ACTU’s claim would not ‘exclude’ the unpaid FDV leave provisions of the NES and thus would not contravene s 55(1), it is unnecessary for us to separately decide whether an entitlement to paid FDV leave in modern awards could also be characterised as supplementing the NES provisions. This is because, as s.136(1) makes clear, s.55(4) does not operate as a limitation on the scope of the matters prescribed by s.139(1) which may be the subject of modern award terms but is rather an additional source of power. Because, on any view, the ACTU’s claim would be encompassed by the subject matters of ‘leave’ in s.139(1)(h), it does not matter whether the claim would supplement the NES or not. However, in deference to the parties’ submissions, we will express a view on the issue.

[199] Section 55(4)(b) permits a modern award or agreement to include terms that supplement the NES, but ‘only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to’ the NES. Section 55(7) provides that to the extent that a term of a modern award is permitted by s.55(4), the term does not contravene s.55(1).149F¹⁵⁰

[200] On its ordinary meaning, a supplementary term is one that provides a supplement or something additional to the substantive provision150F¹⁵¹ – here the entitlement to unpaid FDV leave in Division CA of Division 7 of Part 2-2 of the FW Act.

[201] We do not consider that including an entitlement to paid FDV leave in modern awards could be said to be replacing the NES FDV leave standard ‘with something else entirely’ − it is not of a fundamentally different character and does not provide for something outside the contemplation of the FW Act. It simply provides for a different form of leave entitlement to that contained in the NES, that is directed to the same objectives.

[202] The NES entitlement is directed to providing ‘invaluable support to employees who are experiencing family and domestic violence’, ‘allow[ing] them time to … [undertake activities during working hours to deal with the impact of family and domestic violence] as a minimum workplace entitlement …’ An award entitlement to paid FDV leave sits conformably with the matters to which the NES entitlement is directed and ‘would assist employees affected by family and domestic violence to remain in continuous employment, which in turn would provide financial security, independence, social networks and increased self-esteem’.151F¹⁵²

[203] In our view, the inclusion of a paid FDV leave entitlement in modern awards (or enterprise agreements) would ‘supplement’ or ‘add to’ the substantive NES provision. Indeed, a number of existing enterprise agreements approved by the Commission provide an entitlement to paid FDV leave for employees covered by the agreement.

[204] In the circumstances, we are satisfied that an entitlement to paid FDV leave in modern awards could be said to supplement the NES entitlement and would not be detrimental to an employee in any respect.

5. The Submissions

5.1 General

[205] The ACTU filed:

•  Submission and proposed variation on 30 July 2021

•  Supplementary submission dated 22 December 2021

•  Submissions in reply dated 21 February 2022

•  An amended proposed variation dated 22 February 2022

•  A response to Background Document 1 dated 28 March 2022

•  Final submissions dated 28 March 2022 including the Further Amended Claim Final submissions on the evidence dated 28 March 2022, and

•  A submission in response to Background Document 2 dated 7 April 2022.

[206] JobWatch made a submission in support of the ACTU claim and the following parties made submissions which broadly support an entitlement to paid FDV leave but do not specifically support the ACTU claim:

•  BOQ

•  McAuley Community Services for Women

•  Victorian Government, and

•  WA Government

[207] Correspondence was also received from the Queensland Government setting out a position generally supportive of an entitlement to paid FDV leave.

[208] Various Local Government Associations filed a joint submission in relation to the Local Government Industry Award 2020 submitting that that Award should be varied to provide 5 days’ paid FDV leave to full-time and part-time employees. The Associations also supported the ACTU’s proposed variation to the Note in s.106B(1) of the FW Act (see Note 1 to cl.B(1) of the Further Amended Claim) and the ACTU’s proposed expansion of the definition of ‘family and domestic violence’ (see cl.B(2) of the Further Amended Claim); but opposed the other aspects of the ACTU claim. The Local Government Associations’ submission also records the results of a short survey administered by the WA Local Government Association.152F 153

[209] The following parties made submissions opposing the ACTU claim:

•  ACCI – submissions in reply dated 4 February 2022; final submissions dated 28 March 2022 and submissions in response to Background Document 2 dated 7 April 2022

•  Ai Group – submissions in reply dated 4 February 2022; final submissions dated 28 March 2022 and submissions in response to Background Document 2 dated 7 April 2022, and

•  MGA submissions in reply dated 4 February 2022 and submissions in response to Background Document 2 dated 6 April 2022.

(Collectively, the opposing parties)

[210] The Council of Small Business Organisations Australia (COSBOA) filed a submission generally opposing an entitlement to paid FDV leave, but it did not respond specifically to the ACTU claim and nor did it address the specific issues to be considered in the FDVL Review.

[211] This chapter provides a brief summary of the main merit and legal arguments advanced by the ACTU, ACCI, Ai Group and the MGA. Background Document 1 provides a more detailed summary of the parties’ submissions. The chapter does not canvas the parties’ submissions on the evidence; those submissions are addressed in Chapters 6, 7 and 8. The submissions in respect of the modern awards objective are addressed in Chapter 9.

5.2 The ACTU

[212] The ACTU contends that provision should be made for 10 days’ paid FDV leave in all modern awards and that upon exhausting that paid leave entitlement, employees experiencing FDV should be entitled to up to 5 days’ unpaid leave on each occasion they are required to attend to activities related to their experience of being subjected to FDV.

[213] Paid FDV leave is said to be necessary to ensure that employees are provided with a fair and relevant safety net of minimum terms and conditions of employment.

[214] The ACTU contends that the current safety net of terms and conditions is not ‘fair’, in the sense required by s.134(1) of the FW Act, because:

‘the absence of paid FDV leave requires those employees who have paid leave entitlements to use those entitlements, intended for leisure or illness, to attend to activities directed to escape and recovery from family and domestic violence. Further, a significant proportion of employees, who have no access to any paid leave entitlements at all, are required to take unpaid leave, compounding the economic disadvantage suffered by persons affected by family and domestic violence.’153F 154

[215] The ACTU’s overarching proposition in support of its application is that the existing entitlements provided by the current regulatory framework do not meet the needs of employees who experience FDV. The ACTU submits that the creation of an entitlement to 5 days’ unpaid leave was an important first step in ensuring that employees who need to take time off work to deal with the effects of FDV are able to do so without immediate threat to their security of employment. However, it submits that the safety net remains inadequate to meet the needs of those employees.

[216] The ACTU sets out 8 propositions and findings that it contends should be drawn from the evidence.

1. Family and domestic violence is ubiquitous in Australia

[217] The ACTU continues to rely on the evidence filed and the findings made by the Full Bench in the March 2018 FDVL Decision. These findings include that one in 4 women in Australia have experienced some form of FDV since the age of 15.154F 155

[218] The ACTU also notes that in March 2021, the Report of the House of Representatives Standing Committee Inquiry into Family, Domestic and Sexual Violence Against Women (the House Committee Report) found that rates of family, domestic and sexual violence in Australia ‘do not appear to be declining’ and that family, domestic and sexual violence against women ‘remains a matter of serious concern across the nation.’155F 156

[219] The ACTU further submits that there is a growing body of Australian and international literature showing that the frequency and severity of FDV has risen during the COVID-19 pandemic.156F 157

2. Family and domestic violence is a workplace issue

[220] The ACTU submits that with the introduction of the unpaid leave term in all modern awards and the subsequent inclusion of unpaid leave in the NES (the first new national employment standard since the FW Act commenced), the proposition that FDV is a workplace issue is now unquestionably correct.157F 158

3. The cost of family and domestic violence

[221] The ACTU relies on the finding of the majority in the July 2017 Majority Decision that FDV has a real and tangible impact on employees and employers in the workplace,158F 159 and submits that the employment and financial consequences of FDV affect the national economy, as well as individual employers and employees. For individuals, the employment and financial impact of FDV can be severe, and many affected people are unable to leave violent situations without being at risk of unemployment, financial stress, homelessness and poverty. Conversely, financial security offers a clear pathway out of violent situations, with collateral benefits for employers, and the national economy.

[222] The ACTU submits that the costs of FDV include the following:

•  A cost to the national economy which, in the March 2018 FDVL Decision, was estimated to be between $8.1 billion (in 2002/03 and including male victims) and $21.6 billion (in 2014/15, excluding male victims).159F 160

•  A cost to employers including lost productivity due to absenteeism, recruitment and retraining costs.160F 161

•  A cost to the award-covered workforce. The ACTU submits that women comprise 61 per cent of all award-reliant employees and that 51 per cent of all award-reliant women are casuals. It further submits that award-covered workers are low paid, with female employees earning less than male employees. Finally, the ACTU submits that FDV disproportionately affects women.161F 162

•  A financial impact on employees, including the impact on employment and personal finances. The ACTU submits that employees affected by FDV will incur out-of-pocket costs arising from, for example, lawyers’ and court fees, the cost of medical treatment and relocation costs, and that these costs can be particularly acute at the time of leaving, or contemplating leaving, a violent relationship or situation.162F 163

4. The necessity of paid FDV leave

[223] The ACTU submits that the evidence given by the ACTU lay witnesses is consistent with the observations of the Full Bench in the March 2018 FDVL Decision, that employment is an important pathway out of violent relationships, and that sustained periods of employment can provide, among other things, financial security.163F 164

5. The cost of providing paid FDV leave

[224] The ACTU relies on the evidence of Dr Stanford and Professor Duncan and submits that the actual cost of providing paid FDV leave to award-covered employees would be low. It further submits that an investment in employees’ safety in the form of 10 days’ paid FDV leave has benefits not only for workers, but for employers including a reduction in the costs of absenteeism and lost productivity and indirect benefits in terms of improved corporate image.164F 165

6. Ten days of leave is necessary to provide a minimum safety net

[225] The ACTU submits that 5 days of FDV leave is an insufficient amount of time to protect employees experiencing FDV. It submits that:

•  A ‘common standard’ of 10 days’ paid FDV leave has developed over a number of years and has spread through Australian workplaces in enterprise bargaining agreements.165F 166

•  Not all employees dealing with FDV will need to access the full 10 days of leave per annum. The evidence of Dr Stanford is that the average quantum of leave is just over 7 days.166F 167 However, some employees will require access to more than 10 days.167F168

•  FDV impacts many aspects of a person’s life, including in the areas of health, children, access to legal and financial resources, and accommodation. Dealing with FDV is both time consuming and costly. There are many urgent tasks that must be attended to in order to recover from violence and/or to leave a violent relationship. Aside from the obvious trauma associated with violence and abuse, the sheer logistical challenge of dealing with the effects of FDV can be extreme.168F 169 Access to a sufficient amount of time off work is crucial to ensure that people can access necessary support services, particularly at the point of leaving a violent relationship.169F170

•  The provision by employers of a wide range of supports to employees should be encouraged and supported including access to great amounts of paid time off work where required. However, 10 days’ paid FDV leave is the minimum number of days to which all employees should have access.170F 171

•  A whole of community response to FDV cannot be fully effective unless employers provide employees with – as a minimum – sufficient time off work to access necessary support services. The evidence demonstrates that 5 days of unpaid leave per annum does not provide sufficient time to enable adequate access to such support.171F 172

•  Governments and organisations around the country are undertaking a coordinated national effort to reduce violence against women and children, including by increasing access to services for victims of domestic and family violence and sexual assault. These support services operate during working hours and workers must have access to sufficient time off work to attend them, otherwise the goal of increasing access to services will be gravely undermined. The ACTU submits that its lay witness evidence demonstrates that not having access to sufficient and paid time off work is a key barrier to accessing support.172F 173

7. FDV leave must be paid in order to provide a minimum safety net

[226] The ACTU submits that economic security is the primary factor determining whether a person subjected to FDV remains in, escapes from or returns to a dangerous relationship and that without economic resources, leaving a violent relationship is extremely difficult.173F 174 It is submitted that these findings are borne out by the ACTU’s lay witness evidence, which demonstrates that financial security is an absolutely critical factor in whether or not a person accesses support services.174F175

[227] The ACTU submits that the evidence presents a clear and consistent picture of the central importance of financial security to recovery and escape from FDV, and that conversely; lack of financial security can have a profoundly negative impact on a person’s ability to recover from or escape violent situations.175F 176

[228] The ACTU submits that the absence of paid FDV leave has a particularly adverse impact on women and that:

•  While men can and do experience domestic violence, the evidence shows that women a more likely to be subjected to violence and to experience the impact of such violence more severely.176F 177

•  Women are also over-represented among the award-reliant, casual and low paid workforce and remain disproportionately responsible for caring for children and others, which means women are already more likely to have to use their leave entitlements to attend to caring responsibilities and are less likely to have access to them.177F 178

•  For women who do have paid leave entitlements, the requirement that they use their annual and personal leave to, for example, attend multiple court hearings or move into emergency housing, means they will have less access to leave for illness and leisure than their male counterparts.178F 179

•  Women employed as casuals with no paid leave entitlements have no option but to make the unacceptable choice between their employment and their safety.179F 180

8. Supplementary unpaid FDV leave of 5 days per occasion is necessary

[229] The ACTU also submits that it is necessary to reframe the existing NES entitlement to 5 days’ unpaid FDV leave as a supplementary entitlement which is available on a per occasion basis once the paid leave entitlement is exhausted. It submits that this provision may be rarely utilised, but that for those who need to access the unpaid leave entitlement, it will be crucial. The ACTU further submits that there is precedent for ‘per occasion’ unpaid leave provisions in the FW Act including special maternity leave, carer’s leave, compassionate leave for casuals and community service leave.   180F 181

[230] In relation to the Commission’s research program, the ACTU submits that the research program provides further evidence in support of the ACTU’s application for 10 days’ paid FDV leave for all award-covered employees. The ACTU submits that the following key propositions and findings can be drawn from the research program:

•  The evidence presented in the SWIRLS Report and the Monash Report,181F 182 reiterates the fact that FDV is ubiquitous in Australia.182F183

•  The frequency and severity of FDV has risen during the COVID-19 pandemic.183F 184

•  FDV is a gendered phenomenon and a workplace issue.184F 185

•  There are serious and measurable employment and financial consequences of FDV, affecting the national economy, employers and employees.185F 186

•  The SWIRLS Report found that FDV has a high economic cost, with the estimated cost to the Australian economy of women and children experiencing partner violence ranging between $12.6 and $22 billion per year.186F¹⁸⁷

•  The SWIRLS Report reported that the impact of FDV is estimated to cost employers up to $2 billion a year.187F 188

•  Both the SWIRLS Report and the Monash Report present evidence in support of the conclusion expressed in the July 2017 Majority Decision and the March 2018 FDVL Decision that FDV has a significant adverse impact on those who experience such violence, and on their families and community.188F 189

•  Employment is an important pathway out of violent relationships, and sustained periods of employment can provide financial security (among other things).189F 190

•  The cost to employers of providing paid FDV leave is not substantial and is likely to be offset by reductions in the costs associated with FDV for employers.190F 191

•  The evidence presented in the Commission’s research program suggests that the industrial norm for the provision of paid FDV leave is between 10 and 14 days, which supports the notion that 10 days’ paid leave is an appropriate minimum standard.191F 192

[231] As part of the research program, a survey of employers was designed by Commission staff with the involvement of the parties and was then distributed by employer organisations to their members (the Employer Survey). The Employer Survey sought information on the use and operation of the unpaid FDV leave entitlement; how employers support employees who have experienced FDV, and whether employees have access to either paid or unpaid FDV leave. The ACTU submits that the results from the Employer Survey Report192F 193 should be treated with a degree of caution because the composition of the employer parties’ membership, and representativeness of respondents to the survey of the membership, and of award-covered employers, is unknown.193F194

[232] The ACTU’s reply submissions are canvassed below in the context of the ACCI and Ai Group submissions.

5.3 ACCI and Ai Group

[233] ACCI and Ai Group submit that FDV is a serious and pervasive social issue; it is unacceptable and must be strongly condemned.194F 195 However, they oppose the ACTU claim and contend that no variation to modern awards is necessary in the sense contemplated by s.138 of the FW Act. The paragraphs below summarise the legal and merit arguments advanced by the employer parties and the ACTU’s reply to those submissions.

5.3.1 Ai Group

[234] Ai Group contends that it is not ‘appropriate or necessary’ for the minimum safety net to further prescribe entitlements that apply to employees who experience FDV, beyond the unpaid FDV leave entitlement contained in the NES. Ai Group submits that the provision of any additional support to employees who experience FDV should be left to the enterprise level and submits that:

‘Employers typically take a flexible and compassionate approach to supporting employees experiencing FDV, having regard to the needs of each employee, their circumstances and the employer’s capacity. Employers should be encouraged to continue doing so, where practicable.’195F 196

[235] Ai Group advances 4 broad points:

1. A significant number of initiatives in relation to FDV have been and are being pursued by governments at all levels. These are detailed in Chapter 8 of Ai Group’s submission of 4 February 2022. The extent of government activity in respect of this issue has significantly increased since the earlier proceedings:

‘It is clear that the issue of FDV is at the forefront of the various Governments’ agendas and it is considered a social issue that requires urgent attention … In light of the significantly increased activity by policy-makers in this area ... it is not necessary, as required by s.138 of the FW Act, to create an entitlement to FDVL in the awards system and, by extension, to impose the resulting costs and other impacts on individual employers … it is, in our view, more appropriate that steps are taken through the implementation of the various schemes and programmes designed by Governments to tackle the issue of FDV, rather than through the grant of FDVL’.196F 197

2. The safety net provides employees with various other entitlements and flexibilities which can be accessed by employees experiencing FDV including unpaid FDV leave, personal/carer’s leave, compassionate leave and the right to request flexible working arrangements. The existing legislative entitlements and protections are detailed in Chapter 9 of Ai Group’s submission of 4 February 2022.

3. The cost of providing a paid FDV leave entitlement cannot be properly quantified and therefore the Commission should take a cautious approach and decide against granting such an entitlement.

4. The introduction of further leave entitlements would be unfair to employers; it would increase employment costs and the regulatory burden at a time when many businesses ‘have suffered profound financial and operational challenges as a result of the COVID-19 pandemic’.

[236] Ai Group submits that it would not be appropriate to vary modern awards to introduce paid FDV leave for the following reasons:

•  FDV is a ‘complex, multi-faceted, whole of society issue’197F 198 that affects different employees in different ways and therefore requires a nuanced and flexible approach.198F199

•  Employers are typically supportive of employees experiencing FDV and adopt a compassionate and flexible approach to supporting them. The introduction of paid FDV leave is not likely to facilitate the continuation of such an approach and may in fact undermine the progress made to date in this sphere. 199F 200

•  Many employees already have access to paid FDV leave and/or other associated entitlements by virtue of enterprise agreements that apply to them. The introduction of paid FDV leave to the safety net may stifle employer, employee and union efforts to develop innovative, enterprise-specific schemes that are tailored to the circumstances of the relevant workplace and workforce.   200F 201

•  The introduction of paid FDV leave would impose new and additional employment costs on employers. The material before the Commission does not enable it to properly assess the extent of that cost and the Commission should adopt a cautious approach in the FDVL Review.201F 202

•  It is not fair that employers bear the cost of paid FDV leave.202F 203

•  No workable clause that gives effect to a paid FDV leave entitlement has been advanced before the Commission.203F 204

•  The introduction of paid FDV leave is not ‘necessary’, in the sense required by s.138 of the FW Act.204F 205

5.3.2 ACCI

[237] Similarly to Ai Group, ACCI submits that the introduction of paid FDV leave is not ‘necessary’ to satisfy the modern awards objective. ACCI agrees with the 4 broad points advanced by Ai Group and puts the following additional arguments:

1. The issue of FDV, and any subsequent leave entitlement, is more appropriately addressed by Parliament. Any introduction of paid FDV leave into modern awards would overlap with social policy initiatives which have been explicitly designed to operate alongside unpaid leave entitlements, such as the Government’s escaping violence payment.205F 206 It is clear that Parliament explicitly rejected a decision to introduce a paid leave entitlement into the NES.206F207 The ‘pervasive’ and ‘highly complex’ issue of FDV requires a response that is ‘exponentially broader’ than a modern award entitlement.207F208 Consequently:

‘The idea that the Full Bench of the Fair Work Commission, independent from and in contrast to, the Federal Parliament, should pursue its own course of seeking to address FDV through its introduction of paid leave to employees who happen to be award covered, seems to be inconsistent with this approach.’208F 209

2. The existing framework of entitlements in the NES, including personal/carer’s leave, annual leave, unpaid FDV leave and the right to request flexible working arrangements, is appropriate and satisfies the modern awards objective.209F 210 The existing entitlements and protections are detailed in Chapter 4 of ACCI’s submission of 4 February 2022.

3. There is not sufficient data or analysis on the cost of providing paid FDV leave, particularly the cost to small and medium businesses.210F 211 The data before the Commission does not cover the period of time which the proceedings are designed to review and, in any event, that time period is a time of ‘extraordinary upheaval and displacement in the Australian labour force, economy and society.’211F212 The Full Bench should take a cautious approach and reject the ACTU claim.212F213

4. The introduction of paid FDV leave will increase costs for employers, particularly small and medium businesses, ‘at an acutely difficult and uncertain time for many employers’ due to the COVID-19 pandemic.213F 214

[238] In addition to the above, ACCI further submits:

1. The Commission does not have sufficient evidence to make a meaningful determination about the functioning of the current safety net.214F 215 It is not contested that paid FDV leave will benefit employees experiencing FDV.215F216 However, modern awards are not intended to represent ‘best practice’ but should give rise to ‘minimum and necessary conditions.’216F217 There is not sufficient evidence before the Commission to demonstrate that the current safety net is not providing the minimum necessary conditions for those experiencing FDV.217F218

2. The singular reference to ‘modern award’ in s.157 of the FW Act means that the Commission’s role in assessing the ACTU claim is to determine whether the jurisdictional requirements are met for each and every modern award subject to the claim.218F 219 No attempt has been made to provide evidence as to the specific circumstances of any individual modern award, and the relevant factors for the assessment of the ACTU claim will differ between awards on the basis of pay rates, gender make-ups, entitlements, locations and working conditions.219F220

3. There has been no attempt to establish why award-covered employees should have access to paid FDV leave when award-free employees should not.220F 221 The resulting ‘global’ claim is ‘in effect a claim for a ‘proxy’ NES entitlement reserved only for award-covered employees’.221F222

4. While paid FDV leave may well be a ‘commonly achieved aspect of enterprise bargaining’222F 223 this does not reflect a minimum standard and the Commission should not ‘transplant trends in bargaining into the minimum safety net.’223F224 In considering what is necessary to go into modern awards, the Commission must consider the minimum required, not the requirement of ‘industrial norms’.224F225

5. Current utilisation of unpaid FDV leave is not an appropriate metric to justify the introduction of paid FDV leave. ACCI submits that there are many circumstances in which employees must take paid leave and the ‘fact that an employee is required or has taken unpaid leave to deal with FDV does not, in itself, support a proposition that such leave should be paid leave’.225F 226 ACCI argues there is an important distinction between an employee needing to be absent from work to address FDV-related issues and a requirement that an employer pay the employee during that absence, particularly where there are other pre-existing entitlements and assistance available.226F227

5.4 MGA

[239] As noted earlier in this decision, MGA did not press its initial submissions in relation to employees accessing paid personal/carer’s leave for FDV purposes.227F 228

[240] MGA submits that the current entitlement to unpaid FDV leave is ‘adequate and sufficient as a safety net’ and ‘provides an important tool in safeguarding women’s ongoing participation in the workforce.’228F 229 MGA argues that while ensuring women’s workforce participation is ‘crucial’ there are other options available to protect women’s participation, such as the return to work guarantee in s.84 of the FW Act relating to parental leave.229F230 Additionally, the existing framework is adequate as there are other forms of paid leave available to employees, including personal leave and annual leave.230F231 MGA argues that following the introduction of unpaid FDV leave:

‘[E]mployers have demonstrated varying capacities to accommodate family and domestic violence related absences and to bear associated expenses, as demonstrated in the variety of different additional workplace supports and additional paid leave provided by individual workplaces. Similarly to employers in other industries, MGA TMA members typically take a compassionate and flexible approach when their employees require leave from work due to family and domestic violence.’231F 232 [references omitted]

[241] MGA submits that the introduction of paid FDV leave will have a disproportionate effect on small and medium businesses, particularly through increased employment costs. MGA submits that the increased employment costs ‘coupled with the increased regulatory burden and costs associated with COVID-19, will have a detrimental impact on employment growth and the performance and competitiveness of the Australian economy.’232F 233 MGA conducted a survey of its membership on 28 September 2021, which received 42 responses. 95 per cent of members disagreed with permanent and casual employees being provided with paid FDV leave.233F234 MGA argues:

‘MGA TMA’s small and medium sized members are not well placed to absorb the increased costs of providing the proposed ten paid FDVL days. Small and medium sized independent businesses, such as those in grocery, supermarket and timber and hardware retail, already face razor-thin margins. Should employment costs increase for small and medium businesses through the introduction of paid FDVL, this will result in decreasing profit margins for independent businesses. This may result in unintended indirect consequences for small business, such as having little option but to terminate staff that they can no longer afford, and reduction of employee hours or business owners working longer hours themselves as profit margins decrease. Increased employment costs can also pose indirect harm on small and medium sized business owners through impact on their family lives as they work longer hours, on their superannuation nest egg through the devaluation of their business and ensuing health problems.’234F 235

[242] MGA submits that ‘the impact of introducing paid FDVL will be nullified if family and domestic violence awareness and trauma-informed understanding among employers is not improved’ and therefore that ‘FDV awareness and trauma-informed understanding among employers must be improved prior to the introduction of paid FDVL’.235F 236 MGA argues that ‘an award term providing ten days’ paid FDV leave will have little impact on award-covered employees experiencing such violence if workplace culture is not aligned with the objectives of introduc[ing] such leave.’236F237 MGA suggests the following be introduced to develop FDV awareness and trauma-informed understanding:

•  fact or information sheets, best practice guides and videos that provide information about the prevalence and impact of FDV and provide practical support and guidance to employers, especially small and medium business

•  provision of support services to small and medium sized businesses, such as an employer support helpline and an employee referral system

•  specific engagement and consultation with industry and trade associations in respect of FDV, and

•  a model or template FDV leave policy that supplements other resources, that empowers employers to provide entitlements to FDV leave in excess of any award entitlement, including a paid FDV leave entitlement.

[243] MGA argues there is ‘little data or research’ since the introduction of the unpaid FDV leave entitlement in 2018 and that the decision to introduce a paid entitlement ‘should be informed by data and research that demonstrates its necessity.’237F 238

[244] MGA submits that addressing FDV requires a ‘whole-of-community response’ and as a result it requires federal or state-level support to bear the costs. MGA says it ‘supports introduction of paid FDV leave entitlements if a framework is introduced where the Australian or state Government makes payment to the employer who then pays the employee’ otherwise:

‘It is inequitable that employers not only bear the cost of family and domestic violence through absenteeism and lost productivity, but additionally through paid FDVL.’238F 239

6. The Evidence

6.1 Overview

[245] The ACTU filed 2 expert witness statements: Dr Stanford dated 30 July 2021 and Professor Duncan dated 28 July 2021. Supplementary reports from Dr Stanford and Professor Duncan were filed on 22 December 2021. Professor Duncan and Dr Stanford were cross-examined during the hearing on 1 March 2022 and a transcript of that hearing was published on 2 March 2022.

[246] The ACTU adduced evidence from 10 lay witnesses:

•  Gabrielle Craig, Assistant Principal Solicitor, Women’s Legal Service NSW in Lidcombe, New South Wales (NSW)

•  Marianne Crowe, a Registered Nurse at St Vincent’s Hospital in Melbourne, Victoria

•  Stacey Davies, an Organiser at the United Workers’ Union working in the early childhood education and care team in Melbourne, Victoria

•  Carla Jones, Principal Industrial and Women’s Officer of the Rail, Tram and Bus Union, Queensland Branch

•  Dr Victoria Jones, Head of the Medical Unit at the Women’s Health Service at the Women’s and Children’s Hospital, South Australia

•  Terese Kingston, a Service Support Worker at the Domestic Violence Resource Service, Mackay, Queensland

•  Tess Oxley, a paramedic with the Ambulance Service of New South Wales in Sydney, NSW

•  Samantha Parker, Assistant Manager at the Nepean Blue Mountains Women’s Domestic Violence Court Advocacy Service, in Penrith, NSW

•  Penny Spalding, Assistant Secretary of the Queensland Teachers’ Union, and

•  Karyn Walsh, CEO of Micah Projects in Brisbane, Queensland.

[247] A confidentiality order was issued on 12 August 2021 which applies to some of the lay witness evidence.

[248] The lay witnesses are professionals who work in the areas of medicine, law, industrial relations and family and domestic violence support services and assist people who have experienced (or are experiencing) FDV.

[249] No direct evidence was given by employees who have experienced, or are experiencing, FDV. The ACTU said that it had made a deliberate decision not to call employees who have experienced FDV as witnesses because asking those persons to give evidence and potentially be cross-examined had the potential to be traumatising for those persons.239F 240

[250] As noted by Ai Group in its submissions, the Family Law Act 1975 (Cth) was amended in 2018 to protect people experiencing FDV from being cross-examined in family law matters involving family violence, in certain circumstances.240F 241 The ban on direct cross-examination in certain circumstances aims to prevent the re-traumatisation of people who have experienced FDV.241F242 The amendment to the Family Law Act 1975 gives statutory effect to the understanding that there are inherent challenges involved in cross-examining a person who has experienced FDV, without re-traumatising them in the process.

[251] For our part, we acknowledge that the ACTU’s decision to provide witness evidence from front line workers instead of from employees who have experienced FDV is understandable in the present case. Asking a person who has experienced, or is experiencing, FDV to speak about their experience can be re-traumatising. The Monash Report (discussed below) acknowledges the importance of protecting the wellbeing and safety of persons who have experienced FDV when asking them to speak about their experience.242F 243

[252] Ai Group and ACCI filed objections to the lay evidence: Ai Group dated 24 February 2022 and ACCI dated 24 February 2022. The ACTU filed submissions in reply in relation to the objections.243F 244

[253] Ai Group’s objections were on the grounds that the source of the hearsay evidence was not identified or is anonymised and that, as a result, the evidence cannot be properly tested by the respondent parties who are unable to take steps to ascertain the veracity of the evidence.244F 245

[254] Similarly, ACCI objected to the lay witness evidence on the grounds that it was indirect and involved conclusions which could not be meaningfully tested.245F 246

[255] A hearing on 28 February 2022 dealt with the objections to the evidence and a transcript of those proceedings was published on 1 March 2022. We issued our rulings on the objections to evidence on 28 February 2022.

[256] The ACTU conceded that some of the lay witness evidence was hearsay evidence, but referred to s.60 of the Evidence Act 1995 and submitted that the evidence was not sought to be tendered to prove the truth of the asserted fact but only to prove the fact of the representation.246F 247 We admitted the hearsay evidence on the limited basis identified by the ACTU. Our consideration of the lay witness evidence has been in accordance with the ruling we published on 28 February 2022. 247F248

[257] None of the lay witnesses were required for cross-examination by the employer parties.

[258] ACCI submits that the lay witness evidence takes the Full Bench no further than its conclusions in the earlier proceedings. It submits that these proceedings are about leave and that the lay material filed in this case is ‘not from persons who are the subject of FDV and is accordingly of limited utility when seeking to assess the specific circumstances of those experiencing FDV in relation to their specific employment scenarios’.248F 249

[259] ACCI submits that the lay evidence filed in these proceedings does not establish why leave should be paid, or in the quantum sought by the ACTU claim. It submits that the lay witnesses were not cross-examined by the employer parties because they could not provide direct evidence for the necessity for paid leave (the issue that this case is about). ACCI submits that beyond the findings already made in 2018, it does not believe that any new conclusions could be made on this evidence.249F 250

[260] In relation to the lay witness evidence, Ai Group submits:

•  ‘Large tracks of the evidence has been admitted on the basis that it is hearsay evidence and it is relied upon only to establish what the witness was told, rather than the truth of the asserted fact. Such evidence should not be attributed any weight. At its highest, it is evidence that a person was told something, which may or may not be true, by an unnamed person. Further, if the evidence is not relied upon to establish the truth of the asserted fact, the probative value, relevance and reliability of the evidence is dramatically diminished’.250F 251

•  ‘Significant portions of the evidence relied upon by the ACTU concern unnamed persons. This evidence should not be given any weight.’251F 252

[261] Ai Group also makes submissions in respect of particular lay witnesses and the limitations in that evidence.252F 253

[262] We note here that despite generally contending that we should accord the lay witness evidence no or little weight, the employer parties also sought to rely on various aspects of the lay witness evidence in their submissions, for instance:253F 254

Ai Group relies on:

•  Carla Jones at [9], [11] and [14]254F 255

•  Marianne Crowe at [18]-[19] and [21]255F 256

•  Terese Kingston at [12]256F 257

•  Penny Spalding at [8]-[9] and [14]-[15]257F 258

•  Karyn Walsh at [13] And [15], and258F 259

•  Tess Oxley at [7].259F 260

ACCI relies on:

•  Carla Jones at [12]-[13]260F 261

•  Tess Oxley at [10]-[12]261F 262

•  Stacey Davies at [18], and262F 263

•  Samantha Parker at [33].263F 264

[263] We accept that the lay witness evidence is necessarily limited to the professional experience of the particular witness and cannot be extrapolated to encompass all persons who experience FDV, or the support offered by each and every employer.

[264] The lay witness evidence presents an impression of the cost and time involved in managing or leaving a violent relationship and the significant financial and social barriers to accessing support, and that the ramifications of FDV can have a significant impact on employees in their workplace.

[265] The following broad themes may be said to emerge from the lay witness evidence:

•  An employee’s financial circumstances are a barrier to accessing support, health services and maintaining court proceedings.

•  Dealing with FDV involves substantial time.

•  FDV impacts negatively on work performance.

•  There are benefits to paid FDV leave for employees who are experiencing FDV.

•  Even where paid FDV leave exists, employees face barriers in accessing it.

•  COVID-19 has resulted in an increase in the incidence and impacts of FDV.

[266] These themes are consistent with other evidence in the proceedings.

[267] The opposing parties elected not to call any evidence in the proceedings. It is convenient to deal now with the consequences of the opposing parties’ election.

6.2 The Absence of Evidence Adduced by the Opposing Parties

[268] Ai Group submits that the absence of any employer evidence is ‘neither here nor there’ and that ‘no adverse inference’ should be drawn from the absence of any such evidence.264F 265 Ai Group contends that the employer parties ‘do not bear any onus to demonstrate that FDV leave will result in unfavourable consequences for employers’; 265F266 it is for the proponent of a variation (in this case the ACTU) to establish that the variation proposed is necessary within the meaning of s.138 and to call evidence in respect of the relevant s.134 considerations.266F267

[269] As mentioned earlier, variations to modern awards must be justified on their merits. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.267F 268 The proponent of an award variation should present a persuasive evidentiary case and the failure to do so may lead to a claim being rejected.268F269 But these observations are not intended to import the common law notion of onus or burden of proof. Ultimately, the Commission must be satisfied that a modern award is not achieving the modern awards objective and requires variation.269F270

[270] Indeed, the question of whether legal concepts of onus play a role in statutory tribunals not bound by the rules of evidence, such as the Commission, is a vexed one.270F 271 As a Full Bench of the Australian Industrial Relations Commission observed in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:

‘It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be "satisfied" about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission's own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not. It matters little how the Commission arrives at that state of mind.’271F 272

[271] A legal onus may be distinguished from an evidentiary onus. A legal onus, or burden of persuasion, ‘is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved’ to the requisite standard of proof, with such a party bearing the risk of non-persuasion as to the fact in issue.272F 273 The evidentiary onus was described by the High Court in Sidhu v Van Dyke273F274 ‘in its strict legal connotation’ as being ‘the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the court’.274F275

[272] In seeking to explain the absence of any employer-led evidence, Ai Group observed that:

•  employer organisations cannot compel their members to give evidence, and

•  there are limitations on the resources that Ai Group can devote to the current proceedings.275F 276

[273] This explanation is unpersuasive. As to the first point, there is no evidence that Ai Group even attempted to procure evidence from its members in support of the assertions it advances. And, as to the second point, the employer organisations have been on notice since March 2018 that the issue of paid FDV leave would be revisited in June 2021 and the commencement of the FDVL Review was announced in the April 2021 Statement.

[274] Further, while the allocation of an organisation’s resources are a matter for that organisation, we note that Ai Group has been involved in other matters during the course of the FDVL Review, including review proceedings in respect of individual modern awards. For instance, in the review of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) Ai Group filed submissions on 5 August 2021 and a witness statement. The witness statement filed was directed at, among other things, the need to reconfigure payroll systems in the event that broken shift allowances were introduced into the SCHADS Award. We fail to see why similar evidence could not have been filed in these proceedings in support of the asserted increase in regulatory burden (including changes in payroll administration) as a consequence of the introduction of paid FDV leave. After all, the ACTU claim in these proceedings is not merely directed at one award but seeks to introduce a new paid leave entitlement into all modern awards.

[275] Ai Group contends that ‘no adverse inference’ should be drawn from the failure of the opposing parties to adduce any evidence. We apprehend that this submission is directed, at least in part, at the drawing of a Jones v Dunkel276F 277 inference.

[276] The rule in Jones v Dunkel has been aptly described as ‘a rule of common sense and fairness in relation to the fact finding process’.277F 278 It applies in circumstances where a party fails to call a witness, where it would be natural for them to do so, or where the party might be reasonably expected to call the witness. A breach of the ‘rule’ may lead to the drawing of an adverse inference; namely that the uncalled evidence would not have helped the party's case; not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. Whether such an adverse inference is drawn is a matter of discretion.278F279

[277] The rule in Jones v Dunkel is more apt in inter partes proceedings, than Review proceedings, such as the present matter.   279F 280 Our attention was not drawn to any Review decision which applied the rule to draw an adverse inference. In any event, the ACTU did not invite us to draw a Jones v Dunkel inference in this case and we do not propose to do so. However, that does not mean that the opposing parties’ failure to adduce any evidence is without consequence.

[278] The ACTU contended that it is open to the Commission to assume that the employer parties had access to members who could have given evidence about matters relevant to the issues in contention.280F 281 We agree with that contention and have made that assumption. Further, the ACTU characterises various assertions advanced by the opposing parties as speculative and unsupported by any evidence, including:

•  The proposed variation ‘may cause significant disruption to an employer’s operations’ because the provision (like the current NES entitlement) affords employees the right to be absent from work with little notice and without the employer’s agreement.281F 282

•  The definition of whether an employee has experienced FDV ‘will result in foreseeable difficulties such as confusion or uncertainty as to whether what has occurred is FDV for the purposes of the entitlement, disputation and employers feeling compelled … to adopt an approach of granting such leave when it may not strictly arise’.282F 283

•  The introduction of paid FDV leave would increase the regulatory burden on employers to, as Ai Group put it: ‘administer a new and additional form of leave, which will generally require them to make certain amendments to their payroll services’.283F 284

[279] A party asserting a particular fact or consequence can be said to bear the evidentiary burden of adducing or pointing to evidence which supports that assertion.284F 285

[280] We note that in the SCHADS Award Review proceedings the Full Bench rejected several propositions advanced by Ai Group for which no evidence was adduced, namely:

‘We note here that no evidence is referred to by Ai Group in support of the proposition for the requirement that an agreement be reached on each occasion will impose a substantial regulatory burden on employers.

…

Further to the proposed finding 3, Ai Group asserts that the extent to which the 2 hour minimum payment deters employers from providing training to employees ‘could adversely affect the extent to which employees are afforded an opportunity to develop new skills and refine existing skills’ and ‘may also ultimately affect the quality of the care provided to the employers’ clients’.

No evidence is referred to in support of these assertions and they amount to little more than speculation.

….

Ai Group submits that ‘any notion that the adverse impact of the new minimum payment provisions may... be mitigated by an employer’s ability to ‘build’ a shift of such duration will often not be applicable to work undertaken remotely.’ No evidence is referred to in support of this assertion.’285F 286

[281] We propose to take a similar approach in these proceedings. Contested assertions which are unsupported by evidence will only be accepted if the assertion made is logically persuasive.

[282] We now turn to the reports published as part of the Commission’s research program and the parties’ comments on that research. We will then deal with some data on the prevalence and impacts of FDV and the results of the Workplace Gender Equality Agency (WGEA) Employer Census, before turning to our findings.

[283] We deal with the evidence regarding the cost of the ACTU claim in Chapter 7.

6.3 The Commission’s Research Program

[284] The following reports were published as part of the Commission’s research program:

•  Fitz-Gibbon K, Pfitzner N, McNicol E and Rupanagudi H (2021), ‘Safe, thriving and secure: Family violence leave and workplace supports in Australia‘, Monash University, December (the Monash Report)

•  Survey analysis for the Family and domestic violence leave review 2021, December 2021 (the Employer Survey)

•  Seymour K, Hirsch R, Wendt S and Natalier K (2021), ‘Analysis of the Workplace Agreements Database for the Family and Domestic Violence Leave Review‘, Social Work Innovation Research Living Space, Flinders University, November (the WAD Analysis)

•  Seymour K, Hirsch R, Wendt S and Natalier K (2021), Family and Domestic Violence Leave Entitlement in Australia: A Systemic Review, Social Work Innovation Research Living Space, Flinders University, November (the SWIRLS Report)

[285] The Commission also published a Research Reference List (see Attachment C) and the following Information Notes:

•  Initiatives to reduce family and domestic violence in Budget 2022–23 (5 April 2022)

•  Paid Family and Domestic Violence Leave by business size (11 March 2022)

•  ACTU supplementary submission to the Family and Domestic Violence Leave Review (11 March 2022)

6.3.1 The Monash Report

[286] The Monash Report was commissioned to examine employees’ experiences of FDV. The Report draws on the accounts of 302 victim-survivors of FDV who participated in a national survey and 42 victim-survivors who also shared further insights into their experiences through an interview.286F 287 All data collection was conducted in November and December 2021.287F288

[287] The Monash Report notes that FDV is a gendered phenomenon, with women nearly 3 times more likely than men to experience intimate partner violence;288F 289 consequently the majority of survey respondents (92.5 per cent) and interview participants (95 per cent) were female.289F290 The report also found that both survey and interview participants were more likely to be aged between 41 and 50 years and, based on those that responded to the survey, the majority were employed in full-time ongoing work (56.5 per cent).290F291

[288] The key findings are presented in the Monash Report under 5 themes:

(i) The impact of FDV on employees at work

[289] The Monash Report finds that experiencing FDV significantly impacts employees’ ability to attend and meaningfully engage in work; to fulfil the expectations of their role at work; to participate in the workplace environment, and impacts on career progression. For the majority of survey respondents, engagement in work presented numerous challenges.291F 292

[290] A number of survey respondents noted that in many instances the impacts of violence and/or injuries sustained from an assault meant that they were unable to attend work, often at short notice and typically without proper explanation.292F 293 The Monash Report notes that:

‘The significant impacts that the experiences of DFV have on employees at work highlights the need to ensure that meaningful and effective supports are put in place to negate, where possible, the impacts of experiences of DFV and to support individuals to remain safe and engaged in work.’293F 294

(ii) FDV leave

[291] The Monash Report finds that access to and experiences of using FDV leave (both paid and unpaid) ‘were extremely varied’ across the survey and interview samples.294F 295 Just over half of survey respondents (53 per cent) reported that they did not have access to FDV leave.295F296

[292] The Monash Report goes on to make the following observations:

‘For these victim-survivors the lack of paid family violence leave was closely associated with their experiences of economic insecurity and financial dependence during and following their experience of DFV. Research has consistently evidenced the immediate and long-term financial impacts of intimate partner violence on the economic security of victim-survivors, particularly women (Cortis and Bullen, 2015).’296F 297

[293] Other participants drew comparisons between the existence of FDV leave policies and their own sense of safety, with one participant noting that had FDV leave been available, ‘[m]y daughter would feel safe. I would feel safe’.297F 298

[294] Of the 203 survey respondents who responded to a question asking if they had accessed FDV leave, 20.2 per cent had accessed family violence leave (paid or unpaid) while 28.1 per cent had accessed another form of leave.298F 299 All survey respondents who had accessed FDV leave were employed in either a full-time or part-time ongoing role.299F300 No casuals or contractors who responded to the survey reported having accessed FDV leave.300F301

[295] Survey respondents were invited to list what documentation they provided to their employees in order to access FDV leave.301F 302 The range of documentation provided included:

•  copy of an intervention order

•  letter from courts/court documents.

•  medical/doctor’s certificate

•  letter from legal counsel

•  statutory declaration

•  Police report, and

•  letter from psychologist/psychiatrist.302F 303

[296] In many instances, it was unclear from the survey response received whether this was the required documentation or whether this was the specific documentation volunteered by the individual.303F 304 In several circumstances, survey respondents listed numerous documents provided.304F305 However, it was not clear whether they submitted all these documents voluntarily to support their leave requests and/or whether these documents were considered sufficient evidence on the part of their employers.305F306

[297] The average number of paid FDV leave days that survey respondents could access was 14 days, ranging from one day and up to 3 months.306F 307 Some respondents accessed 90 days of paid FDV leave and around one-third exhausted all FDV leave provisions.307F308 Over half responded that the period of leave offered was sufficient (60 per cent), while a number of those who felt the period of leave was insufficient instead suggested between 2 weeks and one month.308F309 The Report notes that ‘this viewpoint aligns with emerging best practice recommendations which propose a minimum of 10 to 14 days paid leave, and ideally the introduction of unlimited [FDV] leave’.309F310

(iii) The impact of workplace culture

[298] Findings from the survey and interview data analysis show that access to and the use of any FDV leave (paid or unpaid) is inhibited by social stigma and shame. These feelings are exacerbated in unsupportive and unsafe workplaces. Many survey respondents and interview participants talked about their reluctance to disclose their experiences of FDV at work, often due to shame or embarrassment. As one survey respondent explained:

‘I think I’d always struggle with bringing my personal situation into the light at work. Work was my salvation, my safe place, where I was sure of myself and respected (in stark contrast to home where I was screamed at and belittled and made to feel so useless) so I wouldn’t have found it easy bringing DV issues up at work. When my home situation escalated and my former husband took a firearm and started shooting our children’s pets (hard to write that without emotion) the kids and I put our surviving pets in the car and left. We just had the clothes we were wearing and fortunately [we had] family to go to. I called into work sick the next day, and at that point I reached out to my closest friend at work [and] told her what had happened, and she covered me for weeks. I was at work but barely functioning and she did whatever she had to make sure my workload covered. I should have taken more leave but that was on me, the organisation I worked for would have willingly given me leave without needing to know the details. (Survey respondent, female, information media and telecommunication).’310F 311

[299] Some survey respondents did not access leave because they were unwilling to disclose their circumstances.311F 312 The Monash Report states that access to, and use of, FDV leave is ‘inhibited by social stigma and shame’ and that the clear message which emerged from victim-survivors was: ‘if workplaces do not have safe and supportive cultures, then the introduction and operation of any [FDV] policies are null’.312F313

(iv) Additional workplace supports

[300] Beyond the provision of paid or unpaid FDV leave, there were a number of supports provided by employers that survey respondents and interview participants referred to as having played a critical role in ensuring their safety and participation in the workforce while experiencing FDV.313F 314 Supports listed through the survey and interviews as provided by employers could be broadly categorised under 3 key areas:

•  flexible working arrangements

•  safety planning and protocols, and

•  workplace -based services and supports.314F 315

[301] In addition to the importance of paid FDV leave, the Monash Report finds that numerous survey respondents and interview participants identified flexible working arrangements as a critical support that can be provided by workplaces to increase the likelihood that a victim-survivor will be able to maintain employment during and after their experience of violence.315F 316 Flexible working arrangements can include changes to hours of work, amendments to work patterns or work location, and a shift in the duties required in a role.316F317

(v) Supports accessed by employees outside of their workplace

[302] Survey respondents and interview participants listed a number of support services that were accessible outside of their workplace during their experience of FDV.317F 318 These include:

•  legal services including women’s legal services

•  domestic, family and sexual violence specialist services

•  counselling services

•  psychiatrists and psychologists

•  court support

•  child and family services

•  mental health supports

•  religious institutions – including pastors

•  emergency housing and crisis accommodation

•  health services including general practitioners (GPs) and emergency nurses

•  Police, and

•  victims’ services.318F 319

[303] The Monash Report concludes that:

‘When set alongside emerging best practice recommendations in Australia and internationally, the expertise and experience of victim-survivors identifies the need for workplaces to provide at minimum 14 days paid family violence leave, and ideally access to unlimited leave. The latter recognising the long-term impacts of DFV on victim-survivors, the critical importance of their economic security, and the significant journey which accompanies the recovery phase.’319F 320

[304] The Monash Report also notes that its findings support a recommendation made by the Australian Law Reform Commission in 2011 that:

‘There should be a core of basic requirements with respect to family violence leave, including that it should be paid, flexible and easily accessible where necessary, while containing sufficient safeguards to maintain the confidentiality of personal information and the integrity of the leave system.’320F 321

[305] The employer parties’ submissions address the relevance and reliability of the qualitative evidence in the Monash Report.

[306] ACCI argues ‘there is no reference in the study to the size of employers for whom participants worked nor the financial impact that many of the report’s recommendations would have (such as the need for paid FDV leave) on SMEs’.321F 322 ACCI also states that ‘it would have been helpful if the actual questions asked by those interviewing the participants could be provided, given that the form of a question can necessarily shape an answer that it is provided in response’.322F323

[307] Taking the last point first, it was open to ACCI to summons the authors of the Monash Report to give evidence and to call for the questions put to the interview participants; but it chose not to do so. Indeed, the validity of any of the findings or conclusions expressed in the Monash Report could have been challenged by calling for the records of the interviews and cross-examining the authors of the Report; as was done in the Penalty Rates Decision in respect of one of the qualitative studies.323F 324 However, the employer parties in these proceedings chose not to do so. We therefore find no proper basis to conclude that the reliability of the Monash Report data and its conclusions were affected by the form of the questions asked. As to ACCI’s first point, the lack of reference to the size of the employers for whom participants worked would be of greater significance if the Monash Report was to be treated as quantitative evidence, but no party sought to rely upon it in this way. As to the issue of the financial impact of paid FDV leave, that is dealt with extensively in other evidence and, in any event, this is not relevant to the value of the Monash Report insofar as it recommends paid FDV leave based on qualitative research as to the impact of FDV on employees.

[308] Qualitative research often attempts to identify themes emerging from focus group discussions or interviews with individuals. Such research cannot usually be said to be representative of the views or experiences of all persons in the cohort from which the participants are drawn; but it can provide more detail and context, which assists in gaining a deeper understanding about a particular issue. As a number of recent Full Bench decisions have observed, the validity of qualitative research is widely accepted.324F 325

[309] In our view, it is important to listen to and take into account the evidence presented by victim-survivors of FDV. Qualitative research can provide a more detailed understanding of the circumstances of those experiencing FDV—its findings are not meant to be representative of all those who are experiencing or have experienced FDV.

[310] The opposing parties also highlight the Monash Report finding that survey respondents were often unwilling to disclose to their employer that they were experiencing FDV and therefore did not access FDV leave. ACCI states that ‘the provision of 10 days paid FDV leave would not be a solution for this issue’.325F 326 Ai Group submits that the introduction of paid FDV leave ‘will not … directly address many of the needs or concerns identified’.326F327 MGA submits that the research found that paid FDV leave did not ensure victim-survivors’ engagement in work327F328 and that the introduction of paid FDV leave will have ‘little impact’ if awareness and understanding among employers is not improved.328F329

[311] We accept that the introduction of paid FDV leave is not a panacea for the devastating effects of FDV. But the fact that some employees may be unwilling to disclose to their employer that they are experiencing FDV (and hence would not access paid FDV leave) is not a persuasive argument for not introducing such an entitlement. It simply means that not all employees experiencing FDV will choose to access such an entitlement.

[312] ACCI notes that some participants may have been referring to experiences prior to the introduction of 5 days’ unpaid FDV leave and that ‘this may alter and render parts of the Monash Report obsolete and unusable’.329F 330 ACCI also argues that the Monash Report does not provide ‘real and tangible evidence’ as to why 14 days’ paid leave is necessary330F331 and that ‘it is difficult to ascertain’ how it could be used to suggest that unlimited unpaid or 10 days’ of paid leave ‘represents an appropriate industrial minimum’.331F332

[313] As to the first proposition, the Monash Report states:

‘We note from the interview data that some victim-survivors were reflecting on experiences that predate the 2018 decision to include an employee entitlement to five days unpaid family and domestic violence leave.’332F 333

[314] ACCI’s submission that the fact that some participants referred to their experiences prior to the introduction of the 5 days’ unpaid leave entitlement may have altered or rendered obsolete and unusable parts of the Monash Report is entirely speculative, was not the subject of any elaboration and was never put to the authors of the Report. For these reasons it is rejected.

[315] We also reject the second proposition. Contrary to ACCI’s submission, the Monash Report does provide ‘real and tangible evidence’ as to the value of paid FDV leave and the quantum of leave required.

[316] Both Ai Group and ACCI highlight that flexible working arrangements are identified in the Monash Report as being a key part of an employer’s ability to assist employees experiencing FDV. ACCI therefore submits that the needs of employees experiencing FDV will be different in every situation and that ‘this position supports the current system which includes the baseline of the NES but allows employees and employers to come to situation specific accommodations’.333F 334 Ai Group also notes that the Monash Report states that in some instances the employee may require various forms of flexibility and support such as leave from work, changes to working hours and/or changes to other working arrangements to ensure their personal safety.334F335

[317] We accept, as the Monash Report found, that flexible working arrangements play a critical role in ensuring the safety and workforce participation of employees experiencing FDV. But that proposition says nothing about the necessity of providing access to paid FDV leave; indeed the Monash Report concludes that there is a need for workplaces to provide at least 14 days’ paid FDV leave.

[318] The qualitative evidence presented in the Monash Report details the impacts of FDV on the workplace and performance at work of victim-survivors. It provides an important perspective on the significant assistance that paid FDV leave can provide to improve the welfare of victim-survivors and that such leave helps individuals remain safe and engaged in work. As one survey respondent put it:

‘If I didn’t have access to [family violence] leave, I would have lost my job, I would have lost everything … I don’t know if I would have survived … [paid family violence leave] was my lifeline. (Soraya, interview participant)’335F 336

[319] It is convenient to note here that Professor Duncan discusses the Monash Report in Bankwest Curtin Economics Centre, Family and Domestic Violence Leave Review: Supplementary Report prepared by the Bankwest Curtin Economics Centre for the Australian Council of Trade Unions (21 December 2021) (Duncan Supplementary Report)336F 337 and notes the finding that approximately 20 per cent of the respondents had accessed paid or unpaid FDV leave and 92.5 per cent of the respondents identified as female. Professor Duncan states that this finding was consistent with the assumption in the Duncan Report of a 20.1 per cent FDV leave utilisation rate amongst women.337F338

[320] Professor Duncan also notes that the Monash Report supports his conclusions as to the benefits of paid FDV leave in terms of reducing employer costs from absenteeism and lost productivity.338F 339

[321] Professor Duncan was not cross-examined on the contents of his Supplementary Report and we accept this aspect of his evidence.

6.3.2 The Employer Survey

[322] The Commission conducted the Employer Survey to seek information on how employers support employees who have experienced or are experiencing FDV and, in particular, whether employees have access to either paid or unpaid FDV leave.

[323] The Employer Survey was designed by Commission staff and interested parties were able to provide comments on the draft survey instrument.339F 340

[324] A final version of the Employer Survey was published with a Statement on 25 October 2021.340F 341

[325] The Employer Survey was distributed by ACCI, Ai Group and COSBOA to their members and was conducted between October and December 2021. Some 1340 responses were received.341F 342

[326] The results of the Employer Survey were published on 10 December 2021 (the Employer Survey Report). The Survey results did not provide information on the number of members contacted by each employer organisation, or the response rate to the Survey.

[327] Among the Employer Survey respondents:

•  almost half were from employers with 20 or fewer employees, while around one in 5 had more than 100 employees342F 343

•  the majority (87.4 per cent) had employees covered by a modern award, with around half responding that all employees in the organisation were covered by a modern award. Around one-quarter had some or all of their employees covered by an enterprise agreement343F 344

•  the most common modern award used was the Clerks – Private Sector Award 2020 (22.3 per cent) followed by the Manufacturing and Associated Industries and Occupations Award 2020 (13.4 per cent),344F 345 and

•  the most commonly reported industries by Survey respondents were Manufacturing (17.7 per cent), Construction (10.8 per cent) and Retail trade (10.1 per cent).345F 346

[328] Around 7 per cent of respondent employers had employees who had taken unpaid FDV leave in the last 12 months.346F 347 The majority (around two-thirds of respondents) had only 1 employee who had taken unpaid FDV leave in the last 12 months; that is, only around 0.05 per cent of all employees of the Survey respondents had taken unpaid FDV leave in the last 12 months.347F348

[329] About 20 per cent of Survey respondents provided paid FDV leave.348F 349 The most common responses were that employees could take 5 days or 10 days of paid FDV leave each year.349F350 Almost all of those Survey respondents answered that paid FDV leave was available to full-time employees, while most responded that it was available to part-time employees in full or on a pro-rata basis.350F351 Around half of those Survey respondents answered that paid FDV leave was available to casual employees.351F352 Fewer than one-third of Survey respondents answered that their organisation is covered by an enterprise agreement that contains paid FDV leave entitlements.352F353

[330] While the Employer Survey found that one in 5 organisations provided employees with paid FDV leave,353F 354 this varied by business size. Organisations that employed more than 100 employees comprised the highest proportion of those that provided employees with paid FDV leave (35.5 per cent), followed by organisations that employed one to 5 employees (20.7 per cent) (Chart 1).354F355

Chart 1: Does your organisation provide employees with paid FDV leave?355F 356

^{Note: Based on 859 responses. Excludes organisations that had no employees.}

[331] Over one-quarter of Survey respondents required employees accessing paid FDV leave to provide evidence of their need to take leave; a further 30 per cent of respondents required evidence some of the time.356F 357 The most common reasons that employees accessed paid FDV leave were to attend medical appointments, make arrangements for their safety, attend support services, attend court hearings and access legal or police services.357F358

[332] The most common types of support provided by Survey respondents were access to annual leave, personal/carer’s leave or long service leave (LSL); flexible working arrangements (such as changes to duties or work location); unpaid FDV leave entitlements in addition to those contained in the NES, and employee assistance programs or other support services.358F 359

[333] We note that Chart 11 in the Employer Survey Report shows that 91.3 per cent of respondents who had received requests for more than 5 days’ unpaid FDV leave, granted all requests.359F 360 The remaining respondents (8.7 per cent) granted some of the requests.360F361 Among respondents who did not grant all of the requests, the reasons given were that the employee was eligible to take a form of paid leave and that the employee did not provide the evidence required.361F362

[334] Further, the overwhelming majority of respondents to the Employer Survey provided employees with additional leave or support to that required by the FW Act, or by an applicable enterprise agreement or modern award. Some 71.9 per cent of respondents provided such additional leave or support in all instances and a further 15.8 per cent provided additional leave or support in some instances.362F 363

[335] The ACTU contends that the Employer Survey results provide evidence that the ‘industrial norm for the provision of paid FDV leave is between 10 and 14 days’.363F 364 Based on the results of the Employer Survey, the ACTU calculates that ‘the quantum of [paid FDV] leave entitlements is close to evenly split between employers who provide 10 or more days of paid FDV leave (49.7 per cent) and employers who provide 9 or less days (50.3 per cent)’, although it notes that the demographic characteristics of the employers and the number of employees covered is not known.364F365

[336] The ACTU also submits that the Employer Survey ‘does not indicate that employers are experiencing operational difficulties with the implementation of paid or unpaid FDV leave provisions’.365F 366 This submission was based on the proportion of Survey respondents that required employees to provide evidence of their need to take unpaid FDV leave, which according to the ACTU, was consistent with the survey conducted as part of the Monash Report.366F367

[337] The ACTU also submits that, as around half of Survey respondents provided paid FDV leave to casual employees, ‘this suggests that there is no inherent or structural barrier to award-covered employers providing paid leave to casual employees’.367F 368 However, Ai Group argues that the Employer Survey ‘does not suggest that a paid leave entitlement for casual employees is workable in the context of all casuals and across the awards system’.368F369

[338] ACCI submits that the Employer Survey demonstrates that employers voluntarily provide paid FDV leave in certain circumstances, and that when leave is sought it is granted.369F 370 Ai Group also notes that no employer rejected a request for more than 5 days of unpaid FDV leave in a 12 month period.370F371 MGA submits that the results of the Employer Survey demonstrate that prescribing paid FDV leave is not necessary, as the Survey shows that many employers have implemented specific FDV leave policies, introduced FDV leave entitlements in enterprise agreements, and provide other means of support and flexibility to employees.371F372

[339] As to the reliability of the Employer Survey, the ACTU contends that the Survey results should be ‘treated with a degree of caution’, as the composition of employer parties’ membership and the representativeness of Survey respondents to award-reliant employers is unknown.372F 373 ACCI states that the ‘representativeness or otherwise of the employer survey can be discerned in part from the answers to the questions asked’, but accepts that the results of the Employer Survey must be ‘assessed subject to its own limitations’.373F374

[340] In reference to the ACTU’s argument that the Employer Survey should be treated with caution, Ai Group submits:

‘It does not appear to be asserted that the value of the survey has been materially undermined by any unrepresentativeness of the cohort who responded to it; nor is the survey relied upon by Ai Group as being representative of industry generally. We nonetheless note that some 1340 employers responded to the survey. The employers range in their size and the industry in which they operate. The survey therefore provides instructive and contemporary insights into the experiences of employers.’374F 375

[341] A number of Full Bench decisions have commented on the task of assessing the probative value of survey evidence.375F 376

[342] As observed by the Expert Panel in the 2012-13 Annual Wage Review decision:

‘There are well-understood rules about the conduct of surveys that need to be followed if the results of a survey of a sample of a particular population are to accurately represent the picture that you would get if you obtained the same information from that entire population. These rules include that the sample size or proportion sampled must be large enough. Most important, the sample for the survey must be selected on a random basis. If a membership list is used as the basis for a survey, then it is essential that those that respond are properly representative of the entire membership base (e.g. by firm size, form of ownership, industry sector, geographic location). Where this is not the case, then the responses become more like case studies or anecdotes—accounts of the situation of those who did respond, but not to be taken as representative of the survey population (e.g. the membership) as a whole. Even where the survey is representative of the membership, it needs additional evidence to show that it is representative of, for example, employers more broadly.

…

In evaluating the extent to which we can rely on survey evidence that is submitted to us, we would look for an account of the nature of the survey population, the method of collecting responses, the response rate and total number, evidence that the respondents are a true random sample (or close enough) of the survey population, and testing of findings against comparable aggregates produced by the ABS or other known reliable sources. It would also assist to provide a record of the questions asked.’376F 377

[343] We adopt these observations; subject to the qualification that evidence, and in particular survey evidence, is rarely perfect. Part of our task is to determine the probative value of the survey evidence here. As observed by the Full Bench in the Penalty Rates Decision:

‘The assessment of survey evidence is not a binary task – that is, such evidence is not simply accepted or rejected. Most survey evidence has methodological limitations – be it sample related the nature of the questions put or the response rate. The central issue is the extent to which the various limitations impact on the reliability of the results and the weight to be attributed to the survey data.’377F 378

[344] No party suggests that the Employer Survey was a random stratified sample of the relevant population. Nor is it suggested that the results can be extrapolated to employers generally.

[345] In the Penalty Rates Decision, the Full Bench observed that ‘the methodological problems associated with some survey evidence may mean that rather than dismiss the evidence the results are accepted as indicative or anecdotal, rather than definitive’.378F 379 That observation is apposite in the present context. We propose to treat the results of the Employer Survey as indicative or anecdotal rather than definitive. That said, the results do represent the views of 1340 employers and they provide useful information on how employers support employees who have experienced or are experiencing FDV, and whether employees have access to either paid or unpaid FDV leave.

[346] The results of the Employer Survey also inform the debate on the likely utilisation rate of an award entitlement to 10 days’ paid FDV leave and we discuss this in Chapter 7 of our decision.

6.3.3 The WAD Analysis

[347] The Social Work Innovation Research Living Space (SWIRLS) of Flinders University was contracted to undertake analysis of the Attorney-General’s Department’s Workplace Agreements Database (the WAD Analysis).

[348] The WAD Analysis provides an overview of FDV clauses or provisions in current enterprise agreements as at 30 June 2021 and enterprise agreements approved between 7 July 2018 to 30 June 2021.379F 380 The latter captures the period after the 2018 decision that finalised a model term for unpaid FDV leave.380F381 As outlined in the research program published in April 2021, the scope of the WAD Analysis was to update evidence filed by Ai Group in the earlier FDV leave proceedings.381F382

[349] The WAD Analysis contains data on both current and approved enterprise agreements. Current enterprise agreements analysed in the WAD Analysis are those agreements that have been approved and that have commenced but have not been terminated, have not nominally expired and have not been replaced,382F 383 as at 30 June 2021. Approved enterprise agreements in the Analysis are those agreements that were approved by the Commission between 7 July 2018 and 30 June 2021. Given the characteristics of the 2 datasets, we have assumed that there is likely to be a significant overlap in the agreements analysed in the current agreement and approved agreement datasets.

[350] The WAD Analysis found that there were 6,172 current enterprise agreements as at 30 June 2021 with some type of FDV clause or provision,383F 384 which accounted for 60.6 per cent of all current enterprise agreements.384F385 A total of 1,550,344 employees were covered by these agreements, or 87.0 per cent of all employees covered by current enterprise agreements as at 30 June 2021. There has been an increase in the proportion of employees covered by current enterprise agreements with some type of FDV clause, of about 49.24 percentage points between 30 June 2016 and 30 June 2021.385F386

[351] Of the 6,172 current enterprise agreements with some type of FDV clause or provision, 43.5 per cent had paid FDV leave provisions and 55.2 per cent had unpaid FDV leave provisions.386F 387

[352] Construction accounted for the highest proportion of current enterprise agreements with some type of FDV clause or provision (36.0 per cent), while Education and training accounted for the highest proportion of employees covered by current enterprise agreements with some type of FDV clause or provision (20.7 per cent).387F 388

[353] Around one-third (34.7 per cent) of current enterprise agreements with some type of FDV clause or provision cover 1 to 15 employees, and around one-quarter (26.3 per cent) cover 16 to 50 employees.388F 389 A further one-quarter of current agreements cover more than 100 employees.389F390

[354] The WAD Analysis found that there were 7,879 enterprise agreements approved from 7 July 2018 to 30 June 2021 with some type of FDV clause or provision, accounting for 64.4 per cent of enterprise agreements approved in the period.390F 391 This proportion was 27.8 percentage points higher compared with the period analysed in the Ai Group evidence for the March 2018 FDVL Decision (6 July 2016 to 6 July 2018).391F392

[355] A total of 1,684,047 employees were covered by approved enterprise agreements with some type of FDV clause or provision, accounting for 87.03 per cent of all employees covered by enterprise agreements approved from 7 July 2018 to 30 June 2021.392F 393 The number of employees covered by the agreements was around 22.7 per cent higher compared with the period analysed for the March 2018 FDVL Decision.393F394

[356] Around one-third of all enterprise agreements approved from 7 July 2018 to 30 June 2021 (32.8 per cent) have paid FDV leave provisions and almost the same proportion (31.8 per cent) have unpaid FDV leave provisions.394F 395 These enterprise agreements cover 61.7 per cent and 42.6 per cent of employees, respectively.395F396

[357] Around one in 8 enterprise agreements approved from 7 July 2018 to 30 June 2021 contained FDV provisions with access to other/existing leave and/or non-leave entitlements/support, while around one in 10 enterprise agreements approved have provisions for carers/supporters of FDV victims.396F 397

[358] Around 2 in 5 enterprise agreements (39.5 per cent) approved in the period with some type of FDV clause or provision cover one to 15 employees and around one-quarter of approved enterprise agreements (25.2 per cent) cover 16 to 50 employees.397F 398 Less than one-quarter of such approved enterprise agreements (22.5 per cent) covered more than 100 employees.398F399

[359] The parties commented on the relevance of the WAD Analysis in their submissions.

[360] The ACTU states that the number of enterprise agreements currently in operation is not reflected by either the approved or current enterprise agreements datasets, but, subject to this caveat, the analysis of approved enterprise agreements is ‘reasonably likely to reflect the number of enterprise agreements currently in operation’.399F 400 This is in part because current enterprise agreements exclude agreements that have passed their nominal expiry date but have not been terminated or replaced,400F401 so that the dataset of approved enterprise agreements ‘is likely to more accurately reflect current trends in enterprise agreement content’.401F402

[361] Issues regarding the current agreement analysis of the WAD Analysis raised by the ACTU and Dr Stanford were addressed in an information note published by the Commission on 11 March 2022.402F 403 Commission staff contacted the Attorney-General’s Department to obtain data on the number of employees covered by the 2685 current enterprise agreements with a paid FDV leave policy as at 30 June 2021. According to the Attorney-General’s Department, there were around 1.13 million employees on current enterprise agreements (or 63.5 per cent of all employees on current enterprise agreements) that contained paid FDV leave.403F404

[362] ACCI submits that while the WAD Analysis ‘may be of some interest’ it is unable to account for the ability of businesses operating under awards to offer paid FDV leave in the same way as businesses using enterprise agreements; and the content of an enterprise agreement is ‘not reflective of an appropriate minimum standard but rather a bargained outcome above the minimum’.404F 405

[363] ACCI disagrees with Dr Stanford’s comment that the provision of paid FDV leave entitlements has become ‘a common feature of employment policy’, noting that only 32.8 per cent of approved enterprise agreements that contain some form of FDV provision have paid FDV leave.405F 406 ACCI further notes, that just over half of enterprise agreements approved in the period of analysis with paid FDV leave were in Construction, demonstrating that this is not an ‘economy-wide practice’ and not reflected in other industries.406F407 ACCI highlights that Manufacturing accounts for a higher proportion of enterprise agreements with unpaid FDV leave (14.7 per cent) than paid FDV leave (4.7 per cent), indicating ‘a far greater willingness and inclination to provide unpaid FDV leave than paid FDV leave’.407F408 ACCI adds that the ‘overwhelming majority’ of enterprise agreements with paid FDV leave are in Victoria and cover unions408F409 and ‘therefore cannot be said to be reflective of other Australian workplaces’.409F410 ACCI submits that the conclusion from this analysis suggests that, following the introduction of unpaid leave in modern awards and the NES, ‘paid FDV leave is a commonly achieved aspect of enterprise bargaining’, but it is far from ubiquitous and does not reflect a minimum standard even in enterprise bargaining.410F411

[364] In referring to these data, the ACTU notes that Construction ‘has low rates of female participation’ and that industries with the highest proportion of female employees, such as Health care and social assistance and Education and training, represent just 20 per cent of enterprise agreements approved in the period of analysis with paid FDV leave.411F 412 According to the ACTU, that the ‘substantial majority’ of enterprise agreements with some form of FDV leave cover unions suggests workers in industries without strong union representation are less likely to be protected by FDV provisions and argues that the data ‘do not necessarily translate into improved access to paid FDV leave entitlements for employees who need them the most’.412F413

[365] The ACTU highlights that the WAD Analysis showed nearly two-thirds of enterprise agreements approved in the period from 7 July 2018 to 30 June 2021 provide for 10 days of paid FDV leave (62.6 per cent) and just 18.3 per cent provide less than 10 days (the correct proportion is 20.3 per cent); and that over half of employees covered by these agreements have access to 10 days or more of paid FDV leave (55.5 per cent).413F 414 ACCI agrees that while most agreements that provide paid FDV leave specify 10 days, this accounts for only 27.6 per cent of employees.414F415

[366] Ai Group submits that the increase in the proportion of enterprise agreements that contain some type of clause dealing with FDV since 2016 ‘suggests that the absence of such an entitlement [to paid FDV leave] from the safety net may encourage collective bargaining’.415F 416 The ACTU suggests that this ‘causal relationship’ was not explained by Ai Group and that it is ‘equally possible that the introduction of unpaid FDV leave to modern awards and later to the NES, has encouraged collective bargaining on workplace responses to FDV more broadly … and that the introduction of a paid FDV leave entitlement will further encourage bargaining on this issue’.416F417 MGA submits that these data show FDV ‘is currently adequately dealt with at the enterprise level’417F418 while ACCI submits that as employees already have access to paid leave, this means that introducing paid FDV leave is not necessary ‘within the meaning of the Act’.418F419

[367] In our view, it is more appropriate to focus on approved enterprise agreements in the WAD Analysis as this is reasonably likely to reflect the current trends in enterprise agreement content. The data in respect of approved enterprise agreements is set out above.

[368] The WAD Analysis shows that just over 64 per cent of enterprise agreements approved between 7 July 2018 and 30 June 2021 have some type of FDV clause or provision, accounting for the majority of employees covered by these enterprise agreements. Around one-third of all enterprise agreements approved from 7 July 2018 to 30 June 2021 (32.8 per cent) have paid FDV leave provisions.

[369] The most common number of paid FDV leave days provided was 10 days, accounting for 62.6 per cent of enterprise agreements with paid FDV leave provisions approved in the period and covering 27.6 per cent of employees.419F 420 A further 9.9 per cent of approved enterprise agreements provided for more than 10 days of paid FDV leave, covering 27.9 per cent of employees.420F421 For approved enterprise agreements with unpaid FDV leave provisions, 85.2 per cent provided for 5 to 9 days, accounting for 61.9 per cent of employees.421F422

[370] As for the debate about the relationship between the introduction of unpaid FDV leave and bargaining, no evidence is advanced in support of Ai Group’s thesis that the absence of a paid safety net entitlement may have encouraged collective bargaining. Further, as we observe later, in a number of Annual Wage Reviews the Expert Panel has pointed to the ‘complexity of factors which may contribute to decision making about whether or not to bargain’, and that complexity has led the Expert Panel to conclude that it is ‘unable to predict the precise impact [of its decisions] on collective bargaining with any confidence’.422F 423

6.3.4 The SWIRLS Report

[371] The SWIRLS Report presents data and literature analysis about the nature, prevalence and workplace responses to FDV and addresses the following questions:

•  What is the nature and prevalence of FDV in Australia?

•  What are the direct economic costs of FDV on individuals?

•  What approaches have been taken across Australia to address FDV leave, including paid or unpaid leave and/or other flexibilities?

•  What is the impact of FDV leave on workplaces, and the Australian economy?423F 424

[372] The SWIRLS Report begins with an overview of data concerning the nature and prevalence of FDV in Australia, followed by the presentation of findings from a ‘Systematic Literature Review’. The Systematic Literature Review summarises evidence and findings regarding the nature, prevalence and workplace responses to FDV from academic papers, government and consultancy reports. It also covers data on the economic impacts and approaches to FDV leave across Australia.424F 425

[373] Based on the literature review, the SWIRLS Report observes that FDV is a widespread problem with significant consequences that occur across all ages and socioeconomic and demographic groups, but mainly impacts on women and children who suffer emotional, mental and physical issues including the erosion, over time, of employment stability.425F 426

[374] Data presented on key FDV prevalence patterns in the SWIRLS Report include that:

•  women were nearly 3 times more likely to experience partner violence than men426F 427

•  approximately one in 6 women have experienced physical violence by a current or previous partner since the age of 15427F 428

•  women were 8 times more likely than men to experience sexual violence by a partner428F 429

•  almost one in 4 women report experiencing emotional abuse by a current and/or previous partner since the age of 15429F 430

•  women who report violence by a current or previous partner often report multiple incidences of violence430F 431

•  most women who have experienced current partner violence have never contacted police431F 432

•  most women who have experienced physical and/or sexual violence report they do not want to leave that relationship, and432F 433

•  for women in vulnerable populations:

o those with disability or a long-term health condition were twice as likely as women without disability to experience physical and/or sexual violence by a cohabiting partner, and women with intellectual/psychological disability were nearly three times more likely again433F 434

o lesbian and bisexual women experience more physical, sexual and emotional abuse than exclusively heterosexual women434F 435

o those living outside major cities (23 per cent) were more likely to have experienced violence from a current or previous partner since the age of 15 years than women living in major cities (15 per cent),435F 436 and

o indigenous women were more likely to be hospitalised for FDV than non-indigenous women (32 times as likely).436F 437

[375] The SWIRLS Report notes that FDV is also a leading contributing factor in preventable disease, contributing more to the burden of disease for women aged 18–44 years old than any other risk factor.437F 438 It also notes that for those women living in rural and remote areas who have experienced violence from a current or previous partner, difficulties in accessing both formal and informal support also make it more difficult for victims to leave violent relationships.438F439

[376] The SWIRLS Report comments that FDV contributes to economic harm, particularly through its impact on the paid employment of women, contributing to broader gender inequalities. Research set out in the Report estimates that 62 per cent of women who have experienced FDV are employed, with other research finding that they earn relatively lower incomes, which was linked to a move to part-time or casual work and/or full-time caring roles following FDV.439F 440 The SWIRLS Report also highlights that higher participation of women in part-time and casual employment is significant for FDV leave,440F441 and that FDV ‘erodes women’s position in the workforce’.441F442

[377] Additional data referred to in the SWIRLS Report includes that:

•  55–70 per cent of victims are employed full time

•  victims of FDV earn 35 per cent less than non-victims

•  the majority (60 per cent) of victims reported changes to their work hours, location and job classification, and

•  67 per cent of employed victims changed employers, and of those who did change, safety concerns (30 per cent), difficulty performing at work (27 per cent) and/or embarrassment about the situation (30 per cent) were cited as reasons.442F 443

[378] Impacts at the workplace are also identified in the SWIRLS Report, with research supporting a finding that experiences of FDV left women feeling distracted, tired, unwell or afraid at work, leading to absences and leave which often resulted in reduced income or disrupted work histories.443F 444 One report found that one in 11 women had taken time off work due to FDV from a current partner compared with one in 25 men.444F445 The proportion is higher (one in 5 women) in relation to FDV from a previous partner. Expenses incurred by victims of FDV include medical treatment, police support, legal advice, counselling and judicial support, with the average cost of leaving FDV estimated at $18,000 per person.445F446

[379] The SWIRLS Report observes that there is ‘a lack of comparative research’ which systematically identifies the different impacts of paid and unpaid FDV leave; but it did discuss research on potential or likely outcomes of FDV leave on the workplace.446F 447 Such impacts include reduced staff turnover; a more positive work environment; stronger employee morale, and reduced social isolation. One report suggests that any costs to employers from providing FDV leave would be significantly offset by the benefits.447F448

[380] The SWIRLS Report observes that FDV is widely acknowledged as a barrier to achieving gender equality both in the workplace448F 449 and more generally449F450 and goes on to state:

‘… Given the recognition that FDV “erodes working women’s access to safe and full-time work”, FDV leave entitlements can be considered a key element in efforts to secure greater gender equality. FDV leave, for example, is an important means for “maintaining the economic security necessary to potentially leave and recover from a violent relationship”. FDV leave plays a role in mitigating the barriers for women in accessing the resources they need to rebuild their lives. As a strategy for supporting women’s continued employment – and hence, women’s economic independence – FDV leave entitlements can contribute to reducing the damaging impacts of FDV for, not only, individual women but also the broader economy …

… without access to FDV leave, women face an increased risk of financial instability and homelessness that impacts on their ability to leave abusive relationships. Recent publications also emphasise that employment is a crucial pathway for women escaping violent relationships.’450F 451 [Research references omitted]

[381] The ACTU contends that the SWIRLS Report supports conclusions that FDV has a ‘significant adverse impact’ on victims, their families and the community; that employment can provide a pathway out of FDV and a ‘critical source of economic and physical safety’, and that the economic costs cited supports its submissions.451F 452 The ACTU submits that the SWIRLS Report found that FDV disproportionately affects women; that the majority of women who have experienced FDV are employed; that the negative effects are felt both in the immediate and long-term,452F453 and that the disproportionate number of women in casual and part-time work is ‘especially significant’.453F454

[382] Submissions by MGA, ACCI and Ai Group comment on the lack of recent data and studies, as well as the reliability of data referred to in the SWIRLS Report.

[383] MGA argues that decisions on paid FDV leave should be postponed due to there being little new material for analysis, and that significant gaps in the data that is currently available make them unreliable.454F 455 For the reasons given in Chapter 1 we do not propose to postpone the FDVL Review.

[384] ACCI refers to a disclaimer in the SWIRLS Report that notes there had been little new data or research since the March 2018 FDVL Decision and that ‘the existing literature presents little new material for analysis’.455F 456 ACCI submits that this ‘demonstrates that the Full Bench simply has not been put in a position which it can make a meaningful determination’.456F457 Further, ACCI submits that the SWIRLS Report is unable to provide evidence on the amount of unpaid FDV leave being taken and/or how many days of paid FDV leave are required.457F458 Similarly, Ai Group submits that there is ‘little if any analysis’ on the uptake of unpaid FDV leave458F459 and argues that data from WGEA cited in the SWIRLS Report demonstrates that employers support employees experiencing FDV.459F460

[385] In our view, the SWIRLS Report provides a collation of relevant data on the demographics of FDV victims; its impacts on their incomes, experiences at the workplace and with their employers, and costs to the individual and broader economy. In particular, it highlights the disproportionate effect on women workers and the significant impact on their economic security. This information will assist our evaluation of whether the introduction of paid FDV leave into modern awards is necessary, in the sense contemplated by s.138 of the FW Act.

[386] The studies and data cited in the SWIRLS Report support a finding that FDV ‘erodes working women’s access to safe and full-time work’.460F 461

[387] The narrative and data in the SWIRLS Report supports a finding that FDV leave can assist employees experiencing FDV by maintaining their economic security and mitigating the barriers to accessing resources needed to deal with FDV.

[388] The research cited in the SWIRLS Report also suggests that continuity of employment is linked to both long-term financial security for those experiencing FDV and also lower hiring and training costs for employers.

6.3.5 Research Reference List

[389] The Commission’s Research Reference List has been updated throughout the FDVL Review and was most recently published on 6 April 2022. The introduction to the Research Reference List notes that:

‘the Full Bench proposes to have regard to the materials set out in the Research reference list. Parties may address any issues regarding the Research reference list in their submissions in accordance with the current timetable set out at [20] of the Statement issued on 19 October 2021 ([2021] FWCFB 6028).’461F 462

[390] The Research Reference List contains 162 documents consisting of: 61 published research articles and books; 53 working papers and reports; 26 Government reports; and 22 data sources. We refer to some of these documents later in our decision.

[391] We now turn to deal with some data which is drawn from the submissions of the parties, the Commission’s research program and the Research Reference List.

6.4 The Personal Safety Survey

[392] The Personal Safety Survey (PSS),462F 463 conducted by the Australian Bureau of Statistics (ABS), collects information from men and women aged 18 years and over about the nature and extent of violence experienced by them since the age of 15.463F464 The PSS also collects information about men and women’s experience of current and previous partner violence and emotional abuse, experiences of stalking, sexual and physical abuse, witnessing of violence between a parent and their partner, lifetime experiences of sexual harassment and general feelings of safety.464F465 The PSS has been conducted on 3 occasions (2005, 2012 and 2016), and is based on the design of the Women’s Safety Survey conducted in 1996.465F466 In 2016, 21,242 persons completed the survey nationally, comprising 5,653 fully responding males and 15,589 fully responding females.466F467

Partner violence

[393] The PSS collected information about men and women’s experience of partner violence since the age of 15.467F 468

[394] The ABS defines ‘violence’ as ‘any incident involving the occurrence, attempt or threat of either physical or sexual assault experienced by a person since the age of 15’. ‘Partner’ is defined as ‘any person the respondent currently lives with, or has lived with at some point, in a married or de facto relationship.’ A ‘current partner’ is defined as a person who, at the time of the survey, was living with the respondent in a marriage or de facto relationship. A ‘previous partner’ is defined as a person who lived with the respondent at some point, but was no longer living with the respondent at the time of the survey, including a partner the respondent was living with at the time of experiencing violence or a partner the respondent was no longer living with at the time of experiencing violence. The definition of ‘partner’ does not include a boyfriend/girlfriend or date, but these categories were included as part of the definition of ‘intimate partner’.468F 469

[395] According to the 2016 PSS, women are almost 3 times more likely than men to have experienced partner violence, with approximately one in 6 women (17 per cent) and one in 16 men (6.1 per cent) experiencing partner violence since the age of 15.469F 470 In the previous 12 months, 1.7 per cent of women and 0.8 per cent of men experienced violence from a current or former partner. Women were 8 times more likely than men to experience sexual violence by a partner (5.1 per cent for women compared with 0.6 per cent for men). Women were more likely to experience violence by a previous partner than a current partner, with 2.9 per cent of women experiencing violence by a current partner and 14.6 per cent of women experiencing violence by a previous partner.470F471

[396] Rates of partner violence against women have remained stable over time, with 1.5 per cent of women in 2005 compared with 1.7 per cent of women in 2016 reporting experiencing partner violence in the previous 12 months.471F 472

[397] Of those who experienced partner violence, most experienced more than one incident of violence. 54 per cent of women and 65 per cent of men who experienced violence by a current partner experienced more than one incident of violence by that partner.472F 473 6.4 per cent (17,600) of women reported they experienced violence by a current partner all or most of the time.473F474 Men and women who experienced previous partner violence were more likely to experience multiple incidents of violence, with 68 per cent of women and 61 per cent of men who experienced violence by a previous partner experiencing more than one incident by that partner.474F475 Of those women who experienced violence by a previous partner, 19.5 per cent (267,500) said they experienced violence all or most of the time.475F476

Chart 2: Experience of violence by current partner since age 15, women, by frequency of violence

^{Source: ABS, Personal Safety, Australia 2016, Table 17.3.}

Chart 3: Experience of violence by previous partner since age of 15, women, by frequency of violence

^{Source: ABS, Personal Safety, Australia 2016, Table 18.3.}

[398] Men were more likely than women to be the perpetrator of partner violence. Three in 4 (75 per cent) of people who experienced partner violence reported the perpetrator was male compared with 25 per cent who reported the perpetrator was female.476F 477 Partner violence perpetrated against women was almost always perpetrated by a man: 96 per cent of women who experienced partner violence reported the perpetrator was male.477F478

[399] Women who were pregnant were at a greater risk of partner violence: two-thirds (68 per cent) of women who experienced violence from a current partner were pregnant at some stage during the relationship and of those, one in 6 experienced violence during the pregnancy.478F 479 For those women who experienced violence from a previous partner, this rate was even higher: of those women, 47 per cent experienced violence during their pregnancy with 24 per cent experiencing violence for the first time during their pregnancy.479F480

Emotional Abuse

[400] The PSS collected information about men’s and women’s experiences of emotional abuse. ‘Emotional abuse’ is defined as ‘when a person is subjected to certain behaviours or actions that are aimed at preventing or controlling their behaviour, causing them emotional harm or fear. These behaviours are characterised in nature by their intent to manipulate, control, isolate or intimidate the person they are aimed at. They are generally repeated behaviours and include psychological, social, economic and verbal abuse.’480F 481

[401] One in 4 women (23 per cent) and one in 6 men (16 per cent) experienced emotional abuse by a current or previous partner. 38 per cent of women and 22 per cent of men experienced a previous partner controlling them knowing about, having access to or making decisions about household money. 22 per cent of women and 11 per cent of men experienced a previous partner controlling or trying to control them from working or earning money. 27 per cent of women and 22 per cent of men said their previous partner controlled or tried to control their income or assets.481F⁴⁸²

[402] FDV affects not only those who experience it, but their children, family and friends, and work. Some of impacts of family and domestic violence on work, children and health are canvassed below.

Impact on work

[403] The 2016 PSS collected information about the impact of partner violence on work.

[404] Of women who experienced violence by a current partner, 63.2 per cent were working at the time, while 33.1 per cent were not working.482F⁴⁸³ Of women who experienced violence by a previous partner, 67.4 per cent were working at the time, while 31.5 per cent were not working.483F⁴⁸⁴

Chart 4: Current partner violence – women’s employment status

^{Source: ABS, Personal Safety, Australia 2016, Table 17.3 Experience of Current Partner Violence Since Age 15 By Sex of Respondent, Proportion of Persons.}

Chart 5: Previous partner violence – women’s employment status

^{Source: ABS, Personal Safety, Australia 2016, Table 18.3 Experience of Previous Partner Violence Since Age 15 By Sex of Respondent, Proportion of Persons.}

[405] One in 11 (9.6 per cent or 26,500) women and one in 25 (4 per cent or 6,000) men took time off work as a result of violence from a current partner. One in 5 (20 per cent or 270,000) women and one in 6 (17 per cent or 66,200) men took time off as a result of violence from a previous partner.484F⁴⁸⁵

Chart 6: Current partner violence – time taken off work

Source: ABS, Personal Safety, Australia 2016, Table 17.3 Experience of Current Partner Violence Since Age 15 By Sex of Respondent, Proportion of Persons.

Chart 7: Previous partner violence – time taken off work

^{Source: ABS, Personal Safety, Australia 2016, Table 18.3 Experience of Previous Partner Violence Since Age 15 By Sex of Respondent, Proportion of Persons.}

Impact on children

[406] The 2016 PSS asked respondents if they ever heard or saw violence being directed at a parent before the age of 15. One in 10 men (10 per cent) and one in 8 women (13 per cent) witnessed violence towards their mother by a partner.485F⁴⁸⁶ One in 25 men (4 per cent) and one in 20 women (4.7 per cent) witnessed violence towards their father by a partner.486F⁴⁸⁷ Of those who experienced violence by a previous partner, 68 per cent of women and 60 per cent of men who had children in their care when they experienced violence reported that the violence was seen or heard by children.487F⁴⁸⁸

[407] The PSS also collected information and men’s and women’s experiences of physical and/or sexual abuse before the age of 15 by any adult. One in 6 women (6 per cent) and one in 10 men (11 per cent) had experienced abuse before the age of 15. Those who were physically or sexually abused before the age of 15 were approximately 3 times more likely to have experienced partner violence than those who had not been abused before 15: 36 per cent of women and 15 per cent of men who had been abused before the age of 15 had also experienced violence by a partner since the age of 15.488F⁴⁸⁹

Impact on health and routine

[408] The 2016 PSS collected information on experiences of fear or anxiety due to partner violence. 46 per cent of all women who experienced current partner violence experienced anxiety or fear due to the violence, while 65 per cent of women who experienced previous partner violence felt anxiety or fear due to the violence. Half of those respondents reported feeling anxiety or fear most or all of the time.489F⁴⁹⁰

[409] Respondents were asked if they had made changes to routine in the last 12 months due to experiencing anxiety or fear due to partner violence. 2.3 per cent of women experiencing violence from a current partner and 18.7 per cent of women who experienced violence from a previous partner said they had made changes to work due to experiencing anxiety and fear.490F⁴⁹¹ Partner violence also impacted on health: 7.6 per cent of women experiencing current partner violence and 22.5 per cent of women who experienced previous partner violence reported changes to eating habits in the previous 12 months, while 26.5 per cent and 37.6 per cent respectively reported changes to sleeping habits.491F⁴⁹² 40.5 per cent of women who had experienced violence from a previous partner reported changes to social/leisure activities in the previous 12 months due to anxiety or fear.492F⁴⁹³

Impact following separation from a violent partner

[410] 59.7 per cent (756,800) of women who left a violent partner moved out of the home.493F⁴⁹⁴ 24,400 slept rough−that is on the street, in a car, in a tent or squatted in an abandoned building−and 65,100 stayed in a refuge or shelter.494F⁴⁹⁵ Of all the women who left a violent relationship, 38 per cent left property or assets behind when the relationship ended.495F⁴⁹⁶

6.5 WGEA – Employer Census

[411] The results of the WGEA 2020-21 Employer Census noted a ‘sharp rise in the availability of paid FDV leave’ in the past 5 years.496F⁴⁹⁷ The WGEA dataset covers almost 4.2 million employees (nearly 40 per cent of Australia’s total labour force), employed in 4,474 organisations with 100 or more employees.

[412] Chart 35 from the WGEA 2020-21 Employer Census (reproduced below) shows that over 70 per cent of employers have a formal policy and/or strategy to support employees experiencing FDV and there has been a ‘substantial jump’ in employers offering paid FDV leave (12.1 per cent in 2015-16 to 50.7 per cent in 2020-21).497F⁴⁹⁸

Chart 8: Percentage of organisations with a formal policy and/or strategy to support employees who are experiencing family or domestic violence

^{Source: Workplace Gender Equality Agency (2022) ‘Australia’s gender equality scorecard: Key results from the Workplace Gender Equality Agency’s 2020-21 employer census’, February at p.31.}

[413] We now turn to our findings.

6.6 Findings

[414] Most of the evidentiary findings we propose to make are uncontentious.

[415] On 8 March 2022, we issued a Statement498F⁴⁹⁹ in which we directed the parties to address the following question in the written submissions that were due to be filed on 28 March 2022:

‘Are any of the findings at [65]-[66]; [91]-[95] and [102]-[106] of the March 2018 Decision [2018] FWCFB 1691 challenged in the present proceedings? Is there any opposition to the Full Bench adopting those findings in the present proceeding?’

[416] In response to the question posed, the ACTU did not challenge any of the identified findings and supports their adoption in these proceedings.499F⁵⁰⁰ Similarly, ACCI responded that it was not going to challenge any of the identified findings and did not oppose their adoption in the present proceedings.500F⁵⁰¹ Subject to 2 exceptions, Ai Group also did not oppose the adoption of the identified findings;501F⁵⁰² we return to those 2 exceptions later.

[417] We have divided our findings into 2 broad areas:

● FDV: prevalence, general impacts and in particular employment; and

● FDV leave: availability and utility.

[418] Our principal findings are set out at Attachment E.

6.6.1 FDV

(i) Prevalence

[419] FDV is ubiquitous. While men can, and do, experience FDV, such violence disproportionately affects women. Since the age of 15, approximately one in 4 women (23 per cent or 2.2 million) compared to one in 13 men (7.8 per cent or 703,700) has experienced at least one incident of violence by an intimate partner. It is a gendered phenomenon.502F⁵⁰³

[420] On average, one woman every 10 days in Australia is killed by an intimate partner.503F⁵⁰⁴ In the 10 years from mid-2002 to mid-2012:

● 488 women in Australia were killed by an intimate partner, and

● 75 per cent (488) of total victims (654) killed by an intimate partner were women.504F⁵⁰⁵

[421] In the year from 1 July 2019 to 30 June 2020, 36 women in Australia were killed by an intimate partner. Approximately 4 in 5 (80 per cent or 36) of total victims (45) killed by an intimate partner were women.505F⁵⁰⁶

[422] It is not seriously contested that the COVID-19 pandemic has seen an increase in the prevalence of FDV. In a Federal Election Policy Statement released in February 2022, Ai Group states that ‘[T]he pandemic has contributed to an increase in family and domestic violence in the community’.506F⁵⁰⁷ The evidence supports Ai Group’s statement.507F⁵⁰⁸

(ii) Impact

[423] It is uncontentious that FDV has a significant adverse impact on those who experience such violence. The effects of FDV are far reaching and extend beyond the individual directly affected to their families and the general community. Family violence can also exacerbate existing mental health problems and increase the risk of subsequent depression.508F⁵⁰⁹

[424] A number of Australian studies have sought to assess the aggregate cost of violence against women, particularly domestic violence. These include the report by Price Waterhouse Coopers (PwC), A High Price to Pay – the Economic Case for Preventing Violence Against Women (PwC Report).509F⁵¹⁰ A KPMG report titled ‘the Cost of Violence Against Women and their Children’510F⁵¹¹ and ‘The Cost of Domestic Violence to the Australian Economy’ prepared by Access Economics and commissioned by the Office of the Status of Women in 2004 (Access Economics Report).511F⁵¹²

[425] The Victorian Government, Royal Commission into Family Violence Report summarised the findings of the 3 reports referred to above, as follows:512F⁵¹³

Report	Scope	Year	Estimate
Access Economics	Domestic violence (male and female victims)	2002/03	$8.1 billion
KPMG	Domestic violence against women and children (excludes male victims) and non-domestic sexual assault (excludes male victims)	2007/08 2021/22	$13.6 billion $15.6 billion
PwC	Partner violence – physical violence, sexual violence or emotional abuse by current or previous partner perpetrated against women (excludes male victims)	2014/15	$12.6 billion
PwC	All violence against women – physical violence, sexual violence or emotional abuse (by a partner) or stalking by any person perpetrated against women (excludes male victims)	2014/15	$21.6 billion

[426] Relying on an ANROWS 2019 publication, the SWIRLS Report estimates that the impact of FDV costs employers up to $2 billion a year.513F⁵¹⁴

[427] The SWIRLS Report also observes that the long-term economic harm of FDV for individuals is under-researched, but notes:

‘It is widely agreed…that FDV contributes to economic harm in a range of ways, most notably in its impacts on women’s employment.’514F⁵¹⁵

[428] One of the findings from the March 2018 FDVL Decision challenged by Ai Group is the fifth finding at [65] of that Decision which states:

‘Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or become a sole parent; and may suffer economic harm as a result of disruption to workplace participation.’

[429] In respect of this finding, Ai Group submits:

‘Whilst the evidence may be said to establish that some employees who experience FDV face financial difficulties, it does not establish its prevalence or incidence. That is, it cannot be concluded that such employees ‘often’ face financial difficulties as a result of FDV.’515F⁵¹⁶

[430] Ai Group provided no further elaboration or support for its position. In particular, it provided no analysis of the relevant evidence. In our view the evidence supports a finding in the terms set out at [65] of the March 2018 FDVL Decision.

[431] As the ACTU submits, the SWIRLS Report concludes that ‘FDV has a significant impact on women’s paid employment’,516F⁵¹⁷ citing research which found that:

(a) The employment conditions, patterns of participation and work trajectories of women who experience FDV changes significantly after experiencing FDV (Franzway et al., 2019).517F⁵¹⁸

(b) Women experiencing FDV earn 35 per cent less than those who do not (Aeberhard-Hodges and McFerran, 2018).518F⁵¹⁹

(c) FDV causes women to feel distracted, tired, unwell, or afraid at work, leading to absences and leave, often resulting in reduced income and disrupted work histories. (Aeberhard-Hodges & McFerran, 2018; Franzway et al., 2019).519F⁵²⁰

[432] The SWIRLS Report summarises the research in the following terms:

‘FDV has a significant impact on women’s paid employment, thereby contributing to broader gender inequalities. Australian research estimates that 62 per cent of women who have experienced FDV are employed (ANROWS, 2019); 55 per cent to 70 per cent of these women are employed on a full-time basis (Franzway et al., 2019). In their national survey study, Franzway et al. (2019) noted that women who had experienced FDV earned relatively lower incomes which they linked to a shift, post-FDV, to part-time or casual paid work and/or full-time caring roles; in their sample of 658 women, 34 per cent of whom had a Bachelor degree or higher, 40 per cent earned under $30 000pa, 14 per cent earned $30 000–39 000pa, and 10 per cent earned $40 000–49 000pa. While most participants did not change their occupation after experiencing FDV, their employment conditions, patterns of participation and work trajectories changed significantly. The majority (60 per cent) reported changes to their work hours, location and job classification. Sixty-seven percent of women had moved to a different employer for reasons including safety (30 per cent), difficulty performing at work (27 per cent), and/or embarrassment about their situation (30 per cent). The demands of caring for others, usually children, also had implications for the employment of some participants (20 per cent). Franzway et al. (2019) concluded that women’s labour market vulnerability is not just an immediate consequence of FDV but one that stretches into the future. Thus, FDV erodes women’s position in the workforce. Franzway et al.’s (2019) conclusions are supported by Aeberhard-Hodges & McFerran (2018) who report that women experiencing FDV earn 35 per cent less than those who do not.’520F⁵²¹

[433] The Monash Report also supports the contested finding. The Monash Report explored the impact of FDV on employment in detail, including the impact on employees’ ability to attend work, meaningfully engage in work and fulfil work expectations, and participate in the workplace environment. The Report concluded that ‘experiences of DFV impact significantly on an individual’s ability to attend work, to participate meaningfully in work, to fulfil their role expectations, and to progress their career ambitions’.521F⁵²²

[434] Finally, the lay witness evidence also provides support for the contested findings.522F⁵²³

[435] For the reasons given we adopt the fifth finding at [65] in the March 2018 FDVL Decision.

(iii) Employment

[436] It is uncontentious that FDV has a real and tangible impact on employees and employers in the workplace. Women who are experiencing or have experienced FDV have a more disrupted work history; are on lower personal incomes; have had to change jobs frequently; and are more likely to be employed in casual and part-time work, than women with no experience of violence.523F⁵²⁴ FDV is both a cause and consequence of gender inequality.

[437] It is also uncontentious that sustained periods of employment can provide financial security, independence, social networks and increased self-esteem.

[438] The second finding from the March 2018 FDVL Decision which is challenged by Ai Group is the finding in the first sentence of [102] that Decision which says:

‘Employment is an important pathway out of violent relationships.’

[439] In respect of this finding, Ai Group submits:

‘Whilst we do not oppose the proposition that employment may assist employees with leaving violent relationships, the evidence in these proceedings does not establish that employment always, or generally, facilitates or provides a ‘pathway’ out of violent relationships.’524F⁵²⁵

[440] In our view, the evidence clearly supports the challenged finding. The 2019 ANROWS report titled ‘Paid domestic and family violence (DFV) leave: Summary of the evidence’, states:

‘Employment is a crucial pathway for women escaping violent relationships. Sustained periods of employment can provide financial security, independence, social networks and increased self-esteem. Paid domestic and family violence leave is important for minimising disruption to incomes while women end violent relationships and for reducing the adverse financial impact of violence on women.’ 525F⁵²⁶

[441] Cortis and Bullen (2015) conclude:

‘Participation in employment, education and training offer women opportunities to improve their economic security following violence …

In the industrial sphere, domestic violence protections in industrial instruments, including access to domestic violence leave, provide strategies for reducing the impact of violence on women’s workforce participation, job tenure and economic security …

Economic and financial security is central to the wellbeing of women and children during and following experiences of domestic violence …

…

Importantly, economic security affects a woman’s abilities to leave abusive relationships. Women require financial resources to transition from violent relationships, and as abusers may control finances and render women reliant on the abuser, financial insecurity is a key reason that women remain in or return to abusive relationships.

Economic disadvantage constitutes both a major obstacle for women seeking to leave abusive relationships, and a barrier to achieving safety, security, independence and wellbeing following violence.’526F⁵²⁷

[442] Finally, Eftekhar (2019) notes:

‘Ensuring that women who are victims of domestic violence have steady employment is important for several reasons. Firstly, employment is important for reducing isolation, developing self-esteem, confidence, and self-worth in victims. As well, women with disrupted work history are more likely to go on income assistance, and women on income assistance are more likely to experience domestic violence and stay in an abusive relationship. Therefore, preventing this cycle will not only help women but also help reduce public costs. In addition, financial independence is key for women attempting to leave an abusive relationship as financial control and dependence are two of the main reasons women fall back to the hands of their abusers and become trapped in a cycle of violence.’527F⁵²⁸[references omitted]

[443] For the reasons given we adopt the finding in the first sentence of [102] of the March 2018 FDVL Decision.

6.6.2 FDV Leave

(i) The prevalence of paid FDV leave arrangements

[444] The ACTU contends that the evidence demonstrates that a standard of 10 days’ paid FDV leave has developed over time ‘as a consequence of the input of experts in the field and negotiations at the workplace level between employers and employees528F⁵²⁹ and that the ‘industrial norm for the provision of paid FDV leave is between 10 and 14 days’.529F⁵³⁰ The ACTU relies on the following evidence in this regard:

•  Evidence from Debra Eckersley of PwC from the 2016 proceedings, that PwC’s decision to provide 10 days’ paid FDV leave was informed by research that had revealed 10 days as a ‘common standard’ as well as the advice of experts in the FDV field.530F⁵³¹

•  Dr Stanford’s analysis of the WAD which found that most agreements which provide FDV leave specify 10 days, which he suggests demonstrates ‘a growing consistency in leave entitlements around that level of benefit’.531F⁵³²

•  Evidence from the WAD that of the 4,011 enterprise agreements approved between 7 July 2018 to 30 June 2021, 62.55 per cent provide for 10 days’ paid leave, while only 18.32 per cent provide for less than 10 days.532F⁵³³ A further 9.90 per cent of agreements provide for more than 10 days’ leave covering 27.93 per cent of all employees covered by agreements, meaning that over half (55.52 per cent) of all employees covered by agreements have access to 10 days or more of paid FDV leave.533F⁵³⁴

•  Public sector employees in every state and territory have access to paid FDV leave of between 10 and 20 days per year.534F⁵³⁵

•  In relation to the Employer Survey, there was an almost even split between respondents who provide 10 or more days of paid FDV leave (49.7 per cent) and those who provide 9 days or less (50.3 per cent).535F⁵³⁶

•  Respondents to the survey undertaken by Monash, reported an average of 14 days’ paid FDV leave available, with the Monash Report citing emerging best practice recommendations of a minimum of 10 to 14 days’ paid FDV leave.536F⁵³⁷

[445] The opposing parties dispute the proposition that the provision of 10 to 14 days’ paid FDV leave is ‘the industrial norm’.

[446] In relation to the ACTU’s reliance on the WAD Analysis, ACCI notes that of the agreements approved from 7 July 2018 to 30 June 2021 which provide paid FDV leave:

•  a majority are from the construction sector

•  the ‘overwhelming majority’ are from Victoria, and

•  the agreements ‘almost exclusively cover unions and union-covered employees’.537F⁵³⁸

[447] Based on this analysis, ACCI submits that the proposition that ‘the Commission should assess enterprise bargaining outcomes and then transplant trends in bargaining into the minimum safety net should be rejected’,538F⁵³⁹ and that:

‘it is difficult to understand how one state and union-covered employees can be representative of the broader Australian workforce and that their particular practice of providing for paid FDV leave can be held out to be an industrial norm.’539F540

[448] ACCI also rejects the proposition that enterprise bargaining outcomes should be transplanted into the minimum safety net:

‘The Full Bench’s consideration of what is required to go into modern awards should be a consideration of the minimum required. This is not a reflection of so called ‘industrial norms’ and certainly not reflected in outcomes achieved through union-led enterprise bargaining where employers have offered certain industrial terms for their employees to vote on.

There is no ‘upper limit’ in enterprise bargaining in contrast to modern awards which cannot rise above an absolute minimum standard of the modern awards objective.’540F⁵⁴¹

[449] ACCI also submits that the existence of current paid leave entitlements and identification of trends or ‘best practice’ models should not be persuasive.541F⁵⁴² In this context, ACCI points out that the Monash Report identifies 10 to 14 days as ‘best practice’ and submits that ‘modern awards are not intended to represent “best practice”, ideal or desirable conditions, they are meant to give rise to minimum and necessary conditions’.542F⁵⁴³

[450] Ai Group submits that the Commission’s task is to consider what is necessary to achieve the modern awards objective and that:

‘It is not simply to codify commonly provided benefits within the award system. The prevalence or otherwise of a particular above-award condition could not be seen as a compelling justification for a variation to the safety net.’ 543F544

[451] Ai Group makes 5 points in this regard:

1. Parties subject to enterprise agreements are not subject to award terms. Consequently, without information about all of the provisions of the relevant enterprise agreements, the fact that such agreements provided for FDV leave provides ‘little guidance’ as to how they would be applied in practice, or what award terms may have been ‘traded away’ in return for such provisions.544F⁵⁴⁵

2. Growth in bargaining over FDV leave may be the product of industrial pressure applied to employers, and it cannot be assumed that the adoption of 10 days’ paid FDV leave in enterprise agreements reflects a ‘broad acceptance by employers of the appropriateness of such a quantum of leave.’545F⁵⁴⁶

3. The prevalence of a particular quantum of FDV leave in enterprise agreements does not say anything about the actual need for such leave.546F⁵⁴⁷

4. The FW Act reflects an assumption that parties will engage in enterprise bargaining for terms and conditions that leave employees better off overall than the award system. As a result, it would be ‘counter-intuitive for the Commission to lift award conditions to reflect the outcome of such bargaining’.547F⁵⁴⁸

5. Evidence about the prevalence of FDV leave terms in enterprise agreements without any analysis of whether the terms align with other aspects of the ACTU claim, including eligibility and accrual, ‘should not satisfy the Commission that there is any ‘industrial norm’ in relation to a particular quantum of leave’.548F⁵⁴⁹

[452] We note that no evidence is advanced in support of Ai Group’s hypothesis that the growth in bargaining over FDV leave has been the product of industrial pressure applied to employers. However, we accept that it may reasonably be inferred from the concentration of FDV leave entitlements in enterprise agreements which cover unions and apply in more unionised sectors of the workforce that the growth in such entitlements must at least in part be attributed to union claims and union ‘pressure’ in bargaining. We emphasise however that this can only be stated at a high level of generality and there is no material before us about the extent to which such union ‘pressure’ may have included protected industrial action, or even threatened or prospective protected industrial action.

[453] In reply, the ACTU submits that the evidence demonstrates that 10 days’ paid FDV leave ‘has developed over a number of years from negotiations at the workplace level … based on the real and practical needs of employees who have experienced FDV, as well as the input of experts’.549F⁵⁵⁰

[454] The ACTU says it is not asking the Commission to ‘codify’ 10 days’ paid FDV leave within the award system merely because it is increasingly prevalent in enterprise bargaining, but rather submits:

‘the emergence of an industrial norm of 10 days paid FDV leave is evidence of the need of many employees for more than five days of FDV leave, and that there is a growing consensus among employers and employees that this need is met (for most employees, but not all) by the provision of 10 days paid leave.’550F551

[455] The modern awards objective provides that the Commission ‘must ensure that modern awards, together with the [NES], provide a fair and relevant minimum safety net of terms and conditions’.551F⁵⁵² In giving effect to this duty, the Commission must take into account the matters in ss.134(1)(a)-(h).552F⁵⁵³

[456] As the Full Federal Court observed in the Penalty Rates Review:

‘The statutory criteria of “fair and relevant” qualify the nature of the safety net which is the subject of the duty. They inform the taking into account of the matters in s 134(1)(a)-(h) but are not confined by those matters. They are confined only by implication from the subject matter, scope and purpose of the Fair Work Act.

…

It is also the case that the “fair and relevant” safety net criteria which dictate the quality of any modern award embrace the concept of “fair and relevant” having regard to contemporary circumstances, that conception being within the subject matter, scope and purpose of the Fair Work Act.

…

it cannot be doubted that the perspectives of employers and employees and the contemporary circumstances in which an award operates are circumstances within a permissible conception of a “fair and relevant” safety net taking into account the s 134(1)(a)-(h) matters.’ 553F⁵⁵⁴

[457] Hence, we can have regard to contemporary circumstances in assessing whether a modern award achieves the modern awards objective. It seems to us that this includes a consideration of the prevalence and impact of FDV on employment and how employers are responding to these issues.

[458] We readily accept, as Ai Group contends, that it is not our task ‘simply to codify commonly provided benefits within the award system’.554F⁵⁵⁵ But acceptance of that proposition does not mean that benefits provided outside the modern awards system are irrelevant to our consideration of the ACTU claim. As the Full Federal Court has observed, we are entitled to have regard to the contemporary circumstances in which an award operates.

[459] Further, we are required to take into account ‘relative living standards and the needs of the low paid’ (s.134(1)(a)) in assessing whether an award provides a fair and relevant safety net.

[460] The Annual Wage Review Expert Panel has concluded on several occasions that an assessment of ‘relative living standards’ requires a comparison of the living standards of award-reliant workers with other relevant groups and the extent to which low-paid workers are able to achieve a decent standard of living and engage in community life in the context of contemporary norms.

[461] In the 2018-19 Annual Wage Review decision the Panel said:

‘The assessment of relative living standards requires a comparison of the living standards of workers reliant on the NMW and modern award minimum wages with those of other groups, in particular other workers, especially non-managerial workers

...

The living standards of employees on the NMW and award-reliant employees are affected by their wage rate, the hours they work, tax-transfer payments and the circumstances of the households in which they live.’555F⁵⁵⁶

[462] It seems to us that an assessment of relative living standards encompasses a comparison between the FDV leave entitlements of award-reliant workers with employees who are not award-reliant, such as those covered by enterprise agreements or over-award arrangements.

[463] We are, of course, conscious of the need for caution when considering the terms of enterprise bargaining and over-award arrangements in the context of a review of modern awards and when considering proposed variations to modern awards.

[464] Enterprise agreements are negotiated by the parties and approved by the Commission against various statutory criteria. The legislative context relevant to the review of modern awards and to our consideration of applications to vary modern awards is quite different. As the Full Bench in the Modern Awards Review 2012—Penalty Rates decision observed:

‘... in approving agreements the Commission is not making an assessment as to whether the instrument meets the modern awards objective or would be appropriate in circumstances other than those applying at the enterprise concerned.’556F557

[465] In summary, it seems to us that the prevalence of paid FDV leave arrangements is relevant to our consideration of the ACTU claim. The prevalence of paid FDV leave in enterprise agreements and the provision of such leave by a significant proportion of employers more generally suggests that there is a demand for such leave and that such employers see some utility in providing it.

[466] We also wish to comment on ACCI’s contention that ‘modern awards … cannot rise above an absolute minimum standard of the modern awards objective’.557F⁵⁵⁸

[467] The proposition that modern awards ‘cannot rise above an absolute minimum standard’ is a mischaracterisation of our statutory task. A similar proposition was considered, and rejected, in the Penalty Rates Decision.558F⁵⁵⁹ In that case, ACCI (and other employer bodies; referred to as the Joint Employers) submitted that the reference to a ‘minimum safety net’ in s.134(1) means the ‘least … possible’ to create a ‘minimum floor’, as follows:

‘The notion of a “safety” “net” is effectively the creation of a floor ensuring employees are “caught” preventing them from being exposed to “hurt, injury, danger or risk”.

The addition of the term “minimum” reinforces the level that this floor is calibrated to: namely, “… the least quantity or amount possible …”

The creation of the minimum safety net by sections 134 and 284 of the FW Act illuminates what the phrase “only to the extent necessary” in s 138 relates to.

That is, section 138 is dictating that the Commission may only include terms in a modern award to the extent necessary to create a minimum floor. Once this minimum floor is created, section 138 restrains the Commission from going any further irrespective of what historically would be called the “general industrial merits of the case”.’559F⁵⁶⁰

[468] The Full Bench rejected the proposition advanced by the Joint Employers, as follows:

‘The proposition advanced relies on dictionary definitions of some individual words within s.134(1). But the argument advanced pays scant regard to the fact the modern awards objective is a composite expression which requires that modern awards, together with the NES, provide “a fair and relevant minimum safety net of terms and conditions”. The joint employer reply submission gives insufficient weight to the statutory directive that the minimum safety net be “fair and relevant”. Further, in giving effect to the modern awards objective the Commission is required to take into account the s.134 considerations, one of which is “relative living standards and the needs of the low paid” (s.134(1)(a)). The matters identified tell against the proposition advanced in the joint employer reply submission.’560F561

[469] The modern awards objective does not dictate that a ‘fair and relevant safety net’ cannot rise above an ‘absolute minimum standard’. The submission advanced is a gloss on the words of the FW Act. We propose to apply the words of the statute, as interpreted by the Federal Court.

[470] We now turn to the evidence regarding the prevalence of paid FDV leave. At the outset, we note that it is uncontentious that many employers are supportive of their employees and will act in a compassionate and collaborative manner in relation to employees experiencing FDV.561F⁵⁶²

[471] As ACCI acknowledges, paid FDV leave is becoming increasingly common in enterprise agreements, although far from ubiquitous.562F⁵⁶³ Similarly, Ai Group acknowledges that the WAD Analysis shows a ‘significant increase’ in employers providing terms and conditions above the minimum requirement for employees experiencing FDV.563F⁵⁶⁴

[472] The WAD Analysis provides an overview of FDV clauses or provisions in current agreements as at 30 June 2021 and enterprise agreements approved between7 July 2018 and 30 June 2021. As mentioned earlier in Chapter 6.3.3, it is more appropriate to focus on approved enterprise agreements as such a focus is reasonably likely to reflect current trends in enterprise agreement content.

[473] The prevalence of FDV provisions and paid FDV leave in enterprise agreements has increased over time. The WAD Analysis found that:

•  7,879 agreements (64.39 per cent) approved from 7 July 2018 - 30 June 2021 contain some form of FDV clause or provision, accounting for the majority of employees covered by those agreements. This amounts to an increase of about 27.79 per cent compared with agreements approved from 6 July 2016 - 6 July 2018,564F⁵⁶⁵ and

•  Some 1,684,047 employees (87.03 per cent) were covered by agreements approved from 7 July 2018 - 30 June 2021 that contained some form of FDV clause or provision.565F⁵⁶⁶ This amounts to an increase of about 22.68 per cent of employees when compared to those employees covered by agreements approved from 6 July 2016 - 6 July 2018.566F⁵⁶⁷

[474] Around one-third of all enterprise agreements approved from 7 July 2018 to 30 June 2021 (32.8 per cent) have paid FDV leave provisions.567F⁵⁶⁸ The most common number of paid FDV leave days provided was 10 days, accounting for 62.6 per cent of those approved enterprise agreements with paid FDV leave provisions, covering 27.6 per cent of employees covered by those agreements.568F⁵⁶⁹ A further 9.9 per cent of approved enterprise agreements provided for more than 10 days of paid FDV leave, covering 27.9 per cent of employees.569F⁵⁷⁰

[475] We broadly agree with ACCI’s analysis of the agreements approved from 7 July 2018 to 30 June 2021 which contain some type of FDV clause or provision, such agreements are concentrated in particular industry sectors.

[476] Construction accounted for the highest proportion of enterprise agreements approved in the period from 7 July 2018 to 30 June 2021 with some type of FDV clause or provision (42.6 per cent).570F⁵⁷¹ However, Education and training (18.7 per cent) and Health care and social assistance (15.0 per cent) had the highest proportion of employees covered by enterprise agreements approved with some type of FDV clause or provision.571F⁵⁷²

[477] Construction also accounted for the highest proportion of enterprise agreements approved in the period with paid FDV leave (52.8 per cent) and unpaid FDV leave (36.2 per cent).572F⁵⁷³ Again, however, Education and training accounted for the highest proportion of employees covered by approved enterprise agreements with paid FDV leave (23.8 per cent), while Retail trade had the highest proportion of employees covered by approved enterprise agreements with unpaid FDV leave (29.9 per cent).573F⁵⁷⁴

[478] The Employer Survey Report also provides information about employees with access to paid or unpaid FDV leave. The results of the Employer Survey are set out in Chapter 6.3.2. Those results show that about 20 per cent (1 in 5) of respondents provide paid FDV leave and that the provision of paid FDV leave varied by business size.

[479] Based on the Employer Survey Report, the ACTU calculates that ‘the quantum of [paid FDV] leave entitlements is close to evenly split between employers who provide 10 or more days of paid FDV leave (49.7 per cent) and employers who provide 9 or less days (50.3 per cent)’, although it notes that the demographic characteristics of the employers and the number of employees covered is not known.574F⁵⁷⁵ The ACTU calculations were not challenged by the opposing parties.

[480] As we concluded in Chapter 6.3.2, the Employer Survey has its limitations and the results cannot be extrapolated to employers generally. However, the results do represent the views of 1,340 employers and provide useful information on whether employees have access to FDV leave.

[481] The significant increase in enterprise agreements containing a paid FDV leave term is consistent with the results of the WGEA 2020-21 Employer Census, documented in Chapter 6.5. The WGEA dataset covers almost 4.2 million employees (nearly 40 per cent of Australia’s total workforce), employed in 4,474 organisations with 100 or more employees. The Census notes a ‘sharp rise in the availability of paid FDV leave in the past 5 years’ (12.1 per cent in 2015-16 to 50.7 per cent in 2020-21).575F⁵⁷⁶

[482] Finally, the data from the SWIRLS Report, set out in Attachment D, shows that most State and Territory public sector employees have access to between 10 and 20 days’ paid FDV leave.

[483] We now turn to the ACTU’s contention that the ‘industrial norm’ is for employees to be provided with paid FDV leave of between 10 and 14 days.

[484] The ACTU’s unchallenged analysis of the Employer Survey Report suggests that about half of respondent employers who provide paid FDV leave provide 10 or more days’ paid leave. As we have set out above, the WAD Analysis shows that around one-third of all enterprise agreements approved from 7 July 2018 to 30 June 2021 provide paid FDV leave and the most common number of paid FDV leave days provided was 10 days (in 62.6 per cent of agreements with paid FDV leave provisions).576F⁵⁷⁷ A further 9.9 per cent of approved enterprise agreements provided for more than 10 days of paid FDV leave.577F⁵⁷⁸

[485] Access to paid FDV leave varies by business size. The Employer Survey Report shows that of respondent businesses, 20.7 per cent of those employing one to 5 employees and 17.9 per cent of those employing 6 to 10 employees provide paid FDV leave.578F⁵⁷⁹ The WGEA Employer Census shows that 50.7 per cent of organisations employing more than 100 employees provide paid FDV leave.579F⁵⁸⁰

[486] Contrary to the ACTU’s submission, it is not accurate to describe these developments as establishing an ‘industrial norm’ of 10 to 14 days’ paid FDV leave. However, we accept that the evidence establishes that there has been a sharp rise in the availability of paid FDV leave in the past 5 years. A substantial proportion of the Australian workforce now has access to paid FDV leave. The available evidence suggests that where employees are able to access paid FDV leave, it is relatively common for 10 days’ paid leave to be provided. In summary, the evidence supports a finding that the provision of 10 days’ paid FDV leave is an emerging industrial standard in bargaining and over-award arrangements.

(ii) The utility of paid FDV leave

[487] The qualitative evidence presented in the Monash Report details the impacts of FDV on the workplace and performance at work of victim-survivors. It provides an important perspective on the significant assistance that paid FDV leave can provide to assist the welfare of victim-survivors and that such leave helps individuals remain safe and engaged in work.580F⁵⁸¹

[488] The Monash Report also notes that when asked whether in hindsight access to FDV leave would have been helpful:

‘Numerous interview participants described workplaces where the culture was not conducive to safe disclosure, regardless of the leave provisions available … victim-survivors spoke about the value of having supported time away from work to plan for their safety and support their recovery.’581F⁵⁸²

[489] The viewpoint is said to be captured in the comments of an interview participant, who explained:

‘I just needed some time to get myself together, my headspace, get some treatments, just to see where I am today. I just couldn’t believe what was happening to me, because it was a number of assaults. It was just awful. (Bianca, interview participant)’582F583

[490] The Monash Report concludes that:

‘Workplace policies and support practices are essential to ensure victim-survivors are supported to maintain paid employment during their experience of DFV, and to continue to engage with work throughout their recovery. The economic benefits of paid employment are significant in the context of women’s economic security and their ability to safely exit and maintain a life free from violence.

Within this context, family violence leave provisions have a symbolic and a functional role to play.

….

When set alongside emerging best practice recommendations in Australia and internationally, the expertise and experience of victim-survivors identifies the need for workplaces to provide at minimum 14 days paid family violence leave, and ideally access to unlimited leave. The latter recognising the long-term impacts of DFV on victim-survivors, the critical importance of their economic security, and the significant journey which accompanies the recovery phase.’583F⁵⁸⁴

[491] Similarly, the SWIRLS Report observes:

‘FDV is widely acknowledged as a barrier to achieving gender equality both in the workplace (Weatherall, Gavin & Thorburn, 2021) and more generally (ANROWS, 2019; AIHW, 2019). Given the recognition that FDV “erodes working women’s access to safe and full-time work” (Aeberhard-Hodges & McFerran, 2018, p. 260), FDV leave entitlements can be considered a key element in efforts to secure greater gender equality. FDV leave, for example, is an important means for “maintaining the economic security necessary to potentially leave and recover from a violent relationship” (Weatherall, Gavin & Thorburn, 2021, p 571). FDV leave plays a role in mitigating the barriers for women in accessing the resources they need to rebuild their lives. As a strategy for supporting women’s continued employment – and hence, women’s economic independence – FDV leave entitlements can contribute to reducing the damaging impacts of FDV for, not only, individual women but also the broader economy.’584F585

[492] Various articles in the Research Reference List emphasise the importance of access to paid FDV leave to enable victim-survivors ‘to begin the process of surviving and then escaping from a domestic violence situation … [and] is also an important tool in enabling victims of domestic violence to stay in the work force.’585F⁵⁸⁶

[493] The House Committee Report also makes a number of observations relevant to our assessment of the utility of paid FDV leave. In particular, the Report notes that many services supporting victim-survivors are only open, or are primarily open, during business hours, and then makes the following observation:

‘Leave is an important tool to allow victim-survivors to access services. Without an ability to take leave, those experiencing [family, domestic and sexual violence] may be faced with a choice between accessing services and maintaining employment.

The Committee believes that wherever possible victim-survivors should be supported to continue their employment if they wish.’586F⁵⁸⁷

[494] The evidence supports a finding that paid FDV leave provides significant assistance to those experiencing FDV. Such leave helps individuals to maintain their economic security; to access relevant services, and to safely exit to a life free from violence.

[495] The evidence also supports a finding that the provision of paid FDV leave is likely to be of benefit to employers. In its ‘Summary of evidence’ report on paid FDV leave, ANROWS concludes that:

•  The cost to employers of having to provide paid FDV leave will be significantly offset by the benefits of providing paid FDV leave.

•  Benefits include: a demonstration that organisations are committed to their staff; raising awareness of FDV as a workplace and social issue; and enhancing the overall reputation and state of organisations.

[496] de Jonge (2018) goes further, arguing that the benefits of providing paid FDV leave outweighs the cost of doing so:

‘the consequent costs of recruiting and training new employees to replace workers lost due to domestic violence, are greater than the costs of providing leave and other entitlements necessary to support and retain affected employees. In short, the costs of assisting workers to deal with the impacts of domestic violence are far less that the costs involved in not doing so. … Investing in systems and procedures to help affected workers offset the costs of domestic violence also makes economic sense for another important reason. When workers feel that an employer cares enough to provide support through difficult times, employee morale improves, with consequent beneficial impacts on productivity. This generates a virtuous circle, where the additional resources generated by improved productivity can be re-invested in improved training and support services within the workplace.’587F588

[497] In respect of the costs and benefits to employers of the introduction of an entitlement to 10 days paid FDV leave the thrust of the ACTU’s contention is that:

‘the costs to employers of providing FDV leave are likely to be small, and will largely be offset by productivity gains and other benefits associated with helping employees affected by family and domestic violence to escape and recover from harmful and dangerous situations which impact negatively on their lives and on their work.’588F589

[498] In support of its contention the ACTU relies principally on the expert evidence of Professor Duncan and Dr Stanford, and the SWIRLS Report. We return to that evidence shortly.

[499] ACCI submits that ‘[n]o real evidence has been filed at all which is persuasive that, at an individual (particularly small) business level costs of the claim will be off-set by benefits.’589F⁵⁹⁰ ACCI also contests the conclusions in the expert evidence that the costs of a paid FDV leave entitlement are likely to be largely offset by the benefits and submits that that evidence ‘fails to provide any real or tangible evidence of how [Professor Duncan] arrived at this conclusion.’590F⁵⁹¹

[500] Ai Group submits that a ‘small number of conclusions’ can be drawn from the evidence including:

1. That the introduction of additional FDV leave entitlements would increase employment costs.591F⁵⁹²

2. The evidence does not enable a reliable assessment of the quantum of FDV leave that would be taken by employees and, by extension, the evidence does not enable a reliable assessment of the microeconomic or macroeconomic costs of FDV leave.592F⁵⁹³

3. The evidence does not establish that employers will experience benefits as a result of the grant of FDV leave which will in turn offset some or all of the costs associated with FDV leave. Any such assertions in the evidence are ‘at best, speculative.’593F⁵⁹⁴

[501] We deal with Ai Group’s contention that the evidence does not enable a reliable assessment of the cost of the ACTU claim, in the next chapter. We note that ACCI advances a similar argument.

[502] The assessment of whether the introduction of paid FDV leave will reduce the incidence of FDV in the community generally, is somewhat problematic. As Dr Stanford notes:

‘[e]stimating the extent to which the provision of paid leave to employees experiencing FDV would reduce the incidence of FDV (both to themselves, and to other workers) is a complex exercise, given the many factors contributing to the incidence of FDV, and the gradual way those factors evolve over long periods of time. Approaches to scientifically estimating these impacts could include comparing the experience of those who were supported with paid leave in addressing their situations, to the experience of those with no such employment or income protections, and then quantifying resulting differences in the rate of recurrence of violence. Other approaches could involve exploiting cross-industry or cross-jurisdictional variation in the coverage of paid FDV leave measures, to see if any correlation exists with reductions in violence.’594F595

[503] But, the introduction of paid FDV leave is likely to be of some benefit to employers.

[504] The SWIRLS Report observes that FDV can have negative impact on employers and the workplace:

‘[o]ther research confirming the impacts of FDV on employment discusses women’s experiences of feeling distracted, tired, unwell, or afraid at work, leading to absences and leave (Aeberhard-Hodges & McFerran, 2018; Franzway et al., 2019), and often resulting in reduced income and disrupted work histories. The AIHW (2018), for example, reports that 1 in 11 (9.6 per cent, or 26 500) women, as compared to 1 in 25 (4 per cent or 6,000) men, have taken time off work due to FDV from a current partner. This figure rises to 1 in 5 (20 per cent, or 270,000) women in relation to FDV from a previous partner. Aeberhard-Hodges & McFerran (2018) further describe out-of-pocket expenses of FDV, including accessing medical treatment, police support, legal advice, counselling and judicial support. Bluett-Boyd (2018) has estimated the average cost of leaving FDV as more than $18,000 per person.’595F596

[505] The SWIRLS Report also finds that:

‘By facilitating the capacity of employees to maintain ongoing employment, FDV leave is likely to contribute to reduced staff turnover and, hence, less disruption for the workplace while also avoiding the costs associated with recruiting and training new employees (Aeberhard-Hodges & McFerran, 2018; de Jonge, 2018; ANROWS, 2019). FDV leave entitlements may also contribute to a more positive work environment characterised by increased awareness of FDV and reduced stigma for those experiencing it (Aeberhard-Hodges & McFerran, 2018; Eftekhar, 2019; Guthrie & Babic, 2021). This may lead, in itself, to stronger employee morale linked to reduced social isolation and increased self-worth (Eftekhar, 2019; Wilcox et al., 2021).’596F597

[506] Dr Stanford deals with the benefits of paid FDV leave, to employers, in these terms:

‘there is clear evidence that access to paid leave to support employees trying to resolve or escape FDV helps to reduce the recurrence of violence…We cannot say with precision how much those costs would be reduced by the economy-wide provision of FDV leave programs (presumably in concert with other education and support measures to prevent FDV). But they will certainly help to reduce those costs, which are very large, and the potential economic savings resulting from reduced FDV offer a significant incentive (secondary, of course, to the goal of preventing violence and harm experienced by the victims of FDV) for all measures aimed at preventing the occurrence or reoccurrence of FDV.’597F598

[507] It is Dr Stanford’s evidence that:

‘There would be no observable negative impact on productivity from the extension of this entitlement to all workers. Indeed, if there were any impact on productivity at all it would likely be positive (as a result of the causal relationships discussed in Part I of this report between FDV and worker attendance, attention, retention, and productivity). Any measures which serve to reduce the incidence of FDV, and assist victims of FDV in escaping from or resolving those situations more quickly and effectively, will have positive implications for realised productivity.

The impact on business or organisational performance of extending this measure will be positive. The extension would have no significant negative impact on labour cost. Employee attitudes and loyalty to the employer will be strengthened by the knowledge that the employer will offer support to them in the event of the very negative circumstances of FDV. The business or workplace’s public brand may also be enhanced by showing its commitment to this ethical and responsible treatment of its workforce.598F⁵⁹⁹

[508] Professor Duncan’s evidence is in similar terms:

‘the direct benefits to employers from providing paid FDV leave include the reduction in costs from absenteeism and lost productivity due to financial constraints. The indirect benefits to employers include the mitigation of the negative effects of family and domestic violence on workplace productivity.’599F600

[509] As mentioned earlier, the ACTU contends that the cost of providing paid FDV leave as an award entitlement ‘will be largely offset by productivity gains and other benefits associated with helping employees affected by FDV.’600F⁶⁰¹

[510] We accept that the introduction of paid FDV leave will be of some benefit to employers. But the evidence before us is insufficient to quantify that benefit with any level of confidence or to conclude that the benefits would ‘largely offset’ the cost.

7. Cost of the ACTU Claim

7.1 Background

[511] As we have mentioned, the July 2017 Majority Decision accepted the evidence that the provision of paid FDV leave would assist employees experiencing FDV and reduce the financial impact of the consequences of the violence.601F⁶⁰² The Majority had ‘no difficulty in concluding that the provision of paid leave would be a desirable outcome’.602F⁶⁰³

[512] However, the July 2017 Majority Decision ultimately concluded that the variation sought by the ACTU was not necessary to achieve the modern awards objective603F⁶⁰⁴ for reasons which included the following observations:

‘[W]e are not satisfied that the ACTU has made out a case for ten days paid leave to all employees. We have also formed the view that the ACTU’s proposed definition is too broad in scope and would be difficult to apply. Those conclusions however do not negate the need for a protective unpaid provision.

…

The ACTU has not provided a satisfactory explanation as to how it arrived at ten days and the evidence does not support a finding that ten days paid leave is necessary.

Given that paid leave for this purpose has only been made available in recent times, it is not surprising that there is little evidence about the amount of leave that has been taken by employees in reliance on such provisions.

Further, given the lack of availability of leave for this purpose there is little evidence about how much actual unpaid leave is being taken by employees which would, if the clause was in operation, now be paid leave.

Therefore, we are not satisfied that the ACTU has made out a case that ten days paid leave for all award covered employees is necessary to meet the modern award objective.’604F⁶⁰⁵

[513] It is also apparent from the July 2017 Majority Decision’s consideration of the modern awards objective, and s.134(1)(g) in particular, that the absence of evidence as to the cost of the proposed variation was a matter of some significance. The July 2017 Majority Decision deals with the issue as follows:

‘We accept that we are unable to assess the impact of the clause on employment costs. It is unfortunate that none of the studies to date have uncovered the extent to which employers informally or formally provide such leave or the extent to which employees access existing entitlements for family and domestic violence leave.

We accept that providing paid leave to employees who experience family and domestic violence may assist employees to leave violent relationships and hence reduce the disruption to the workplace and increase the productivity of those who experience family and domestic violence. The provision of such paid leave would send a message to employees that family and domestic violence is an important workplace issue and encourage those who experience family and domestic violence to take preventative action earlier and thereby reduce the disruption to the workplace and hence improve the productivity of those employees.

However, we accept that it is difficult to measure these impacts in circumstances where such leave has only recently been introduced and the informal provision of such leave has not been measured.

We accept that the provision of paid leave will increase costs to employers and that given the lack of data, the impact on employers of that increase in costs is difficult to assess.

This supports our conclusion that we should take a cautious approach to the introduction of family and domestic violence leave, particularly paid family and domestic violence leave.’605F⁶⁰⁶

[514] In short, the Majority relied on 4 points in rejecting the ACTU’s claim for 10 days paid FDV leave:

1. The ACTU did not provide a satisfactory explanation as to how it arrived at the figure of 10 days’ paid leave and the evidence did not support a finding that 10 days’ paid FDV leave is necessary.

2. None of the studies to that point of time had uncovered the extent to which employers informally or formally provided paid FDV leave.

3. There was ‘little evidence’ about the amount of leave employees experiencing FDV actually take, in circumstances where their employer provides FDV leave.

4. The Majority accepted that the provision of paid FDV leave would increase employment costs but was unable to assess the extent of the increase because of the lack of data referred to in points 2 and 3 above.

[515] As to the first point, we deal with whether 10 days’ paid FDV leave is necessary in Chapter 8.3.1.

[516] The evidentiary deficiency identified in the second point has been addressed in these proceedings. As we found in Chapter 6.6.2, the evidence establishes that there has been a sharp rise in the availability of paid FDV leave in the past 5 years and that the provision of 10 days’ paid FDV leave is an emerging industrial standard in bargaining and over-award arrangements.

[517] The third point relied on by the Majority concerned the paucity of evidence about the utilisation of paid FDV leave, in circumstances where it was available. The utilisation issue is central to estimating the cost of the ACTU’s claim. We propose to turn to that issue first before turning to the parties’ submissions as to the cost of the ACTU claim and the evidence of Professor Duncan and Dr Stanford.

7.2 The Utilisation of Paid FDV Leave

[518] Various aspects of the evidence inform our consideration of the likely level of utilisation of an entitlement to 10 days’ paid FDV leave, should such an entitlement be introduced. These aspects of the evidence are set out below.

7.2.1 Employer Survey

[519] The Commission conducted a survey to understand how employers support employees who have experienced or are experiencing FDV and, in particular, whether employees have access to either paid or unpaid FDV leave. A more detailed consideration of the Employer Survey results is set out in Chapter 6.3.2.

[520] The Employer Survey results provide the following data on the utilisation of unpaid leave:

● 7.3 per cent of respondents reported that they had employees who had taken unpaid FDV leave in the last 12 months.606F⁶⁰⁷

● Most of the respondents (63.3 per cent) who answered that they had employees who had taken unpaid FDV leave in the past 12 months had only one employee who had taken unpaid FDV leave and about one in 5 (21.7 per cent) said they had 2 employees who had taken unpaid FDV leave.607F⁶⁰⁸

● Around 0.05 per cent of the total number of employees across all survey participants had taken unpaid FDV leave in the past 12 months.608F⁶⁰⁹

[521] Professor Duncan and Dr Stanford refer to the Employer Survey results in their supplementary statements and comment on the utilisation rate.609F⁶¹⁰

[522] Professor Duncan notes that the survey results do not make clear the proportion of employees experiencing FDV that are specifically provided with access to paid FDV leave.610F⁶¹¹ He goes on to derive an estimate of the utilisation of paid FDV leave among employees of the respondents to the Employer Survey, as follows:

‘Given that 13.4 per cent organisations in the Employer Survey received a request for leave or other forms of support from employees experiencing FDV in the past two years, and 31 per cent of those organisations provide paid FDV leave among the range of supports on offer, this suggests that up to 4.2 per cent of organisations (13.4% x 31%) in the Employer Survey provided paid FDV leave to at least one employee in the past two years. This assumes that all employees experiencing FDV would request paid FDV [leave] if available, and that all requests for paid FDV leave would be granted by their employers.

…

The Employer Survey does not allow for a calculation of how many of those employees were granted paid FDV leave. However, if 4.2 per cent of organisations have granted paid FDV leave to at least one employee in the past two years, the share of employees who requested and were provided with paid FDV leave will be a far smaller percentage, due to the number of workers employed by responding organisations in the Employer Survey.’611F⁶¹²

[523] Professor Duncan concludes that the evidence from the Employer Survey ‘suggests the assumed incidence of paid FDV leave used in [the Duncan Report] are reasonable, and does not give cause to revisit the analysis of costings in’ that Report.612F⁶¹³

[524] Similarly, Dr Stanford states that the utilisation rate of 0.05 per cent for unpaid FDV leave ‘is at the lower end of the range of estimated utilisation rates for paid FDV leave provisions’ that were reported in the Stanford Report - but that ‘the results of the FWC’s survey are consistent with [his] general conclusion in [Dr Stanford’s current report] that the use of FDV leave is a rare occurrence among employees’.613F⁶¹⁴

[525] Professor Duncan and Dr Stanford were not cross-examined on the contents of their supplementary reports and we accept this aspect of their evidence.

7.2.2 Monash Report

[526] An online survey was conducted of Australians over the age of 18 who had experienced FDV. A total of 302 respondents completed the online survey. Of the 203 respondents who responded to the question about accessing FDV leave, 20.2 per cent had accessed either paid or unpaid FDV leave, while 28.1 per cent accessed another form of leave while experiencing FDV.614F⁶¹⁵ The Monash survey is not a representative sample survey and we have treated the survey results as indicative only and as qualitative in nature.

[527] 21.7 per cent of respondents said they did not access FDV leave. Of those respondents who accessed FDV leave, only one took unpaid FDV leave. The remaining respondents accessed paid FDV leave.615F⁶¹⁶

[528] Over a quarter of the respondents who did not access FDV leave were casual employees or on a contract and either did not have access to FDV leave or did not think they could access it.616F⁶¹⁷

[529] Of those respondents whose workplaces offered paid FDV leave, the number of days available ranged from one day to up to 3 months, with an average of 14 days’ paid FDV leave.617F⁶¹⁸

[530] Approximately one third of respondents reported they had fully exhausted their FDV leave entitlement.618F⁶¹⁹

7.2.3 Bank of Queensland

[531] The BOQ advised that in 2014 it incorporated a clause within its Enterprise Agreement providing for 5 days’ paid and 5 days’ unpaid FDV leave. In 2017, the clause was updated to expand the entitlement to 10 days’ paid and 10 days’ unpaid FDV leave, with an additional 3 days’ leave for an employee required to provide support for a family or household member impacted by FDV.619F⁶²⁰

[532] Clause 25.4 of the BOQ 2018 Enterprise Agreement deals with ‘Domestic or family violence leave’ and states:

‘(a) Subject to compliance with Clauses 25.4(b) and 25.4(c), if you are experiencing domestic and family violence you will be allowed:

(i) 10 days per year (non-cumulative) of paid leave;

for medical appointments, legal proceedings and other activities related to domestic and family violence. This leave will be in addition to existing leave entitlements and may be taken as consecutive or single days or as a fraction of a day and can be taken without prior approval.

(b) You must give BOQ notice, in accordance with BOQ's policies, of the taking of leave under this clause. The notice must:

(i) be given to either your manager or People and Culture as soon as practicable once the need for the leave is realised (which may be a time after the leave has started); and

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

(c) If you have given notice of the taking of leave under this clause, you must, if required by BOQ, give BOQ evidence that would satisfy a reasonable person of the need for the leave.’

[533] The F17 Employer’s Statutory declaration filed in support of the approval of the BOQ 2018 Enterprise Agreement states that the agreement covers 856 employees.

[534] BOQ submits that between 2018 – 2021 it has provided specific FDV support to 21 employees. BOQ advises that the adoption of paid FDV leave averages 3 days per impacted employee and, of those employees who accessed paid leave, only one accessed the full 10 days.620F⁶²¹

7.2.4 WA Government

[535] The WA Government filed a submission on 23 December 2021 noting that it introduced 10 days paid FDV leave for all WA public sector employees in 2017.621F⁶²² An employee who uses all their paid FDV leave entitlement can access up to 2 days unpaid FDV leave on each further occasion. As at September 2021, there were over 155,000 employees in the WA public sector. The table below sets out the number of days of paid FDV leave accessed by WA public sector employees (excluding 52,500 public health system employees) since 2017 by gender:622F⁶²³

[536] The WA Government submission does not contain information on the number of employees who took paid FDV leave, nor the average number of days of leave taken.

[537] The ACTU notes that the data is incomplete but submits it is instructive that the WA Government provides 10 days paid FDV leave to all WA public sector employees. As at September 2021, over 155,000 employees were entitled to a collective total of 1.55 million days of paid FDV leave per year. In the 12 months between August 2020 and August 2021, a total of 869 days of paid FDV leave were taken,623F⁶²⁴ representing 0.05 per cent utilisation of the total number of days of paid FDV leave available to WA public sector employees.624F⁶²⁵

7.2.5 Victorian Government

[538] The Victorian Government filed a further submission on 28 March 2022 which provides updated information in relation to its family violence leave model clauses. The Victorian Government submits that:

● paid family violence leave is now in the approximately 150 public sector enterprise agreements that cover 9 government departments and approximately 280 public sector agencies, and625F⁶²⁶

● approximately 322,605 Victorian public sector employees have access to 20 days’ paid family violence leave or unpaid family violence leave for casual employees.626F⁶²⁷

[539] The Victorian Government’s further submission provides data on the utilisation of the paid leave entitlement in 3 of its largest departments - the Department of Health (which employs approximately 4,335 employees), the Department of Families, Fairness and Housing (which employs approximately 6,300 employees), and the Department of Justice and Community Safety (which employs approximately 10,855 employees)’627F⁶²⁸ For these Departments:

● an average of 0.3 per cent of employees accessed paid family violence leave in the past year, and

● an average of 8.56 days of a 20 day per annum entitlement were taken.628F⁶²⁹

[540] The Victorian Government’s further submissions also states:

‘Whilst casuals in the Victorian public sector do not have a paid entitlement to family violence leave, on 14 March 2022 the Victorian Government initiated a two-year pilot - Australian first - Victorian Sick Pay Guarantee scheme where casual employees in eligible occupations can be paid an allowance to enable them to attend to mental and physical ill health and issues, covering five days paid per year of sick and carers pay at the national minimum wage.’629F630

[541] The ACTU submits that the data in the Victorian Government’s further submission shows an average of 0.3 per cent of eligible employees accessed paid FDV leave in the last year. The ACTU contends that this level of utilisation ‘is consistent with, and reinforces, evidence before the Commission that utilisation rates are likely to be low’.

[542] In response to the Victorian Government data, Ai Group contends that it only covers a small proportion of Victorian public sector employees and that the Commission cannot be satisfied that it is a representative sample of that employee cohort.630F⁶³¹ ACCI notes that the utilisation of a leave entitlement that does not extend to casuals is likely to be lower than the utilisation of the ACTU claim, if granted. This is said to be so because permanent employees have access to other forms of paid leave which may be used in relevant circumstances.631F⁶³²

[543] We accept Ai Group’s criticism of the data; we cannot be satisfied that it is a representative sample of the relevant employee cohort. That said, the data still represents the experience of over 20,000 employees with access to paid FDV leave.

[544] We also accept the logic of the proposition advanced by ACCI; but, as will become apparent, the point advanced is not relevant as it is our provisional view that paid FDV leave not apply to casuals.

7.2.6 Research Reference List

[545] In 2019, the Domestic Violence – Victims Protection Act 2018 (NZ) took effect, which introduced 10 days’ paid FDV leave for all employees in New Zealand. Holly Carrington, DVFREE632F⁶³³ & Policy Advisor from the domestic violence organisation Shine, reported that an informal survey of 6 employers (with a combined total of 18,800 employees) found that less than 0.5 per cent of employees had asked for paid FDV leave from April 2019 to March 2021.633F⁶³⁴ Of those employees who accessed the leave, the average utilisation was less than 5 days per year.634F⁶³⁵

[546] Breckenridge et al conducted an online survey of Australian workplaces between February 2015 and March 2015 which received 102 responses.635F⁶³⁶ 35.3 per cent of respondents reported receiving a request for FDV leave in the previous 12 months.636F⁶³⁷ The average time off for paid leave was 43 hours, and time off ranged from 8 hours to 202 hours.637F⁶³⁸ 40 per cent of those respondents reported the typical amount of leave requested per incident was 2 to 3 days, with 25.7 per cent reporting one day or less and 11.4 per cent reporting a request for one week or more.638F⁶³⁹

7.2.7 House Committee Report

[547] The House Committee Report records the following information provided by the National Retail Association about the impact of the introduction of 5 days’ unpaid FDV leave in 2018:

‘Ms Lindsay Carrol from the National Retail Association (NRA), told the Committee:

When the full bench of the Fair Work Commission determined to vary 120 modern awards to include the entitlement to five days of unpaid family and domestic violence leave, we fully supported this measure. Since that entitlement came into effect in August 2018, we’ve actively sought feedback from our members about the take-up of that leave. That feedback has led us to conclude that the impact of that entitlement on our members was negligible. One of our larger members, with over 2,000 employees, had budgeted for an increased cost of a minuscule 0.05 per cent.

However, Ms Carrol advised that the NRA had not canvassed its members’ views on the proposal for paid family violence leave and did not have a formal position on the proposal.’639F⁶⁴⁰ [footnotes omitted]

7.2.8 The Expert Evidence

[548] Professor Duncan and Dr Stanford provide evidence in respect of utilisation, in addition to their evidence referred to above about the Employer Survey data on utilisation. We deal with their evidence in more detail later, but note here that they both expect the utilisation of a modern award paid FDV leave entitlement to be low.

7.3 Submissions

[549] The ACTU relies on the evidence of Dr Stanford and Professor Duncan and submits that the actual cost of providing paid FDV leave to award-covered employees would be low. It is further submitted that an investment in employees’ safety in the form of 10 days’ paid FDV leave has benefits not only for workers, but for employers, including a reduction in the costs of absenteeism and lost productivity. It also contends that there are indirect benefits in terms of improved corporate image.640F⁶⁴¹

[550] The employer parties submit that there is insufficient material before the Commission to assess the cost of introducing paid FDV leave; but that it is clear that the introduction of paid FDV leave will introduce additional costs for employers. ACCI and Ai Group identify various limitations in the expert evidence.641F⁶⁴² These submissions are summarised in Background Document 1.

7.4 The Expert Evidence

7.4.1 Dr Stanford

[551] Dr James Stanford is an Economist and Director of the Centre for Future Work. Dr Stanford prepared two expert reports: the Stanford Report and the Stanford Supplementary Report. The Stanford Supplementary Report has been considered in the sections regarding the Monash Report and the Employer Survey above.

[552] The Stanford Report was prepared in response to the ACTU’s request that Dr Stanford provide an expert report addressing the following questions:

1. What is your estimate of the likely utilisation (if any) of an entitlement in all modern awards for 10 days paid family and domestic violence leave?

2. What is your estimate of the likely aggregate impact (if any) of the provision of 10 days paid family and domestic violence leave in modern awards on businesses employing award-covered workers, including small and medium sized businesses, in term of:

(a) Employment costs (including providing paid leave);

(b) Productivity;

(c) Performance; and

(d) Regulatory burden?

3. What is your estimate of the likely impact (if any) of an entitlement in all modern awards for 10 days paid family and domestic violence leave on:

(a) Employment growth;

(b) Inflation;

(c) The sustainability, performance and competitiveness of the national economy; and

(c) Workforce participation?642F⁶⁴³

[553] Background Document 2 contained a summary of the methodology of the Stanford Report. In its response to Background Document 2, the ACTU proposed a number of corrections to that summary.643F⁶⁴⁴ ACCI and Ai Group did not take exception with the ACTU’s corrections.644F⁶⁴⁵ The ACTU’s corrections have been incorporated into the methodology set out below.

[554] A key finding in the Stanford report is that a 10-day paid FDV leave provision would be utilised by between 0.23 per cent and 0.46 per cent of all employees each year, with an average of 7-8 days leave taken by an employee over the course of a year.645F⁶⁴⁶ Dr Stanford estimates this will cost less than $200 million per year across the whole economy.646F⁶⁴⁷

[555] The Stanford Report calculates utilisation rates as the number of days claimed for paid FDV leave as a proportion of total days worked by employees, and provides a range of estimates of the utilisation of 10 days paid FDV leave to award covered employees:

1. Applying data from existing research, the utilisation rates of a paid FDV leave entitlement would be between 0.001 per cent and 0.013 per cent with employees taking an average of 7-8 days of leave.647F⁶⁴⁸

2. Utilising data from an informal survey of 3 employers, the utilisation rates of a paid FDV leave entitlement would be between 0.0027 per cent and 0.0078 per cent.648F⁶⁴⁹

3. Relying on data from existing research and the informal survey, the provision of paid FDV leave would increase aggregate labour costs by 0.4 cents per hour work, amounting to a total cost to the workforce of less than $100 million per year (low end estimate).649F⁶⁵⁰

4. Utilising data from the PSS, 0.23 per cent to 0.46 per cent of all employees will utilise paid FDV leave each year. Assuming that the average claim is 10 days, workplaces will lose 0.021 per cent of total working time in a year, with estimated costs less than $200 million per year (high end estimate).650F⁶⁵¹

5. Based on an analysis of the Workplace Agreements Database, close to 30 per cent of all approved EAs since 2018 include a paid FDV leave provision.651F⁶⁵²

6. Relying on prior research and the Workplace Agreements Database, Dr Stanford estimates that between 30 per cent and 50 per cent of Australian employees already have access to paid FDV leave entitlements.652F⁶⁵³

[556] The methodology in the Stanford report can be summarised as follows:

Step 1

[557] Dr Stanford estimates the utilisation rate of a paid FDV leave entitlement by using results from previous research.

[558] Table 2 in the Stanford Report shows the utilisation rates of paid FDV leave entitlements from 5 previous studies of FDV leave provisions. Dr Stanford estimates the utilisation rates in the various studies as between 0.001 per cent and 0.013 per cent, with employees on average utilising between 7-8 days of paid FDV leave over the course of a year.653F⁶⁵⁴

Step 2

[559] The Stanford Report relies on an informal survey conducted by Dr Stanford in 2021 of 46 Australian employers from which 3 responses were received. The 3 employers have had paid FDV leave programs which provide 10 days or more of leave in place for 2 to 6 years (see table 3 in the Stanford Report).654F⁶⁵⁵

Step 3

[560] Dr Stanford uses data from the ABS National Accounts and Labour Force (2019) to calculate the cost of providing paid FDV leave.

[561] Using the National Accounts and Labour Force data, Dr Stanford finds that the all-in cost of labour compensation for Australian workers averaged $44 per hour worked in 2019.655F⁶⁵⁶

[562] Relying on the existing research and the informal survey, Dr Stanford concludes that the cumulative total of paid FDV leave accounted for between 0.001 to 0.013 per cent of total working time. Taking the high end of these estimates (rounded to 0.01) and multiplying it with the average labour compensation in 2019, Dr Stanford estimates that provision of paid FDV leave would increase aggregate labour costs by 0.4 cents per hour worked.656F⁶⁵⁷ Using this figure, Dr Stanford estimates that the cost across the entire workforce of providing paid FDV leave would be less than $100 million per year (low end estimate).657F⁶⁵⁸

Step 4

[563] Dr Stanford generates a ‘high end estimate’ of the costs of providing paid FDV leave by utilising the PSS data on whole of population experience of intimate partner violence in the previous 12 months.

[564] Table 4 of the Stanford Report shows the estimated prevalence rate of intimate partner violence for the previous 12 months. It is estimated that 1.76 per cent of the population experiences intimate partner violence in a given year.658F⁶⁵⁹

Table 4. Incidence of Sexual or Physical Violence from Intimate Partner, Last 12 Months

Table 4. Incidence of Sexual or Physical Violence from Intimate Partner, Last 12 Months
	Assault	Threat	Total
Women
Number (000)	187.0	50.4	211.7
% All Adults	1.99%	0.54%	2.26%
Proportion of Victims of Violence1 Missing Work in Next 12 Months			15.49%
Men
Number (000)	96.6	19.2	113.9
% All Adults	1.07%	0.21%	1.26%
Proportion of Victims of Violence1 Missing Work in Next 12 Months			10.77%
Total
Number (000)	283.5	72.1	323.1
% All Adults	1.54%	0.39%	1.76%
Proportion of Victims of Violence1 Missing Work in the Next 12 Months			13.00%

^{Source: Author's calculations from ABS, "Personal Safety, Australia," 2016, Tables 5.1, 10.1, and 11.1. Totals do not add due to overlapping categories.}

^{1 Including victims of any form of violence}

[565] Dr Stanford uses PSS data on time taken off work for targets of violence by any perpetrator (not just partner violence). It is estimated that 13 per cent of targets of violence by any perpetrator took time off work in the preceding 12 months.659F⁶⁶⁰

[566] Dr Stanford relies on research by Cox that estimates that 62 per cent of women who experienced FDV were employed. Relying on ABS Labour Force data (2020), Dr Stanford estimates this is approximately equal to the proportion of adult women who participate in the labour market. He therefore assumes that the incidence of FDV experienced by working women is equivalent to the overall incidence experienced by all women.660F⁶⁶¹

[567] To estimate the proportion of employees who take time off work as a result of FDV, Dr Stanford estimates that if 1.76 per cent of the population experiences intimate partner violence and 13 per cent will miss work as a result, this amounts to 0.23 per cent of all workers who will experience an absence from work due to FDV in any given year.661F⁶⁶²

[568] Dr Stanford assumes that the broader provision of a paid FDV leave entitlement and growing social awareness and acceptance of its use, may lead to more frequent claims. He assumes that the number of people who take FDV leave will double.662F⁶⁶³ Consequently, the overall claim rate of a paid FDV leave entitlement is reached by estimating that if 1.76 per cent of the population experienced FDV in a given year, and 26 per cent of those will miss work as a result, there will be an overall claim rate of 0.46 per cent per year, that is 0.46 per cent of all employees will take paid FDV leave each year.663F⁶⁶⁴

Step 5

[569] Assuming that the average claim of paid FDV leave is 10 days of leave, Dr Stanford estimates that workplaces will lose 0.021 per cent of total working time in a year. This is an upper-boundary estimate reflecting the high-cost assumptions made at each stage of the calculation. The Stanford Report calculates that at that rate of utilisation, a workplace with 1000 full-time workers could expect to incur approximately 45 additional days of paid leave per year, or 20 minutes of extra paid leave per worker per year.664F⁶⁶⁵

[570] Using the same method of estimating employment costs for the entire economy as at Step 3 above, the Stanford Report estimates that the cost of the utilisation rate of 0.021 per cent of working time would equal less than $200 million per year, or less than 0.01 of the national GDP.665F⁶⁶⁶

[571] Dr Stanford acknowledges that this calculated estimate does not account for the proportion of the workforce who already has access to paid FDV leave.666F⁶⁶⁷

[572] The Stanford Report cites prior research by Family and Community Services NSW and the WAD to determine the existing coverage of FDV leave entitlements.

[573] A qualitative survey of 123 workplaces from which 33 responses were received by Family and Community Services NSW found that 18 workplaces had policies providing paid FDV leave and 21 had policies providing unpaid FDV leave.667F⁶⁶⁸ The survey found that larger workplaces were more likely to provide paid FDV leave: one-third of workplaces with between 1000 and 5000 employees and over half of workplaces with between 5,000 and 10,000 employees offered paid FDV leave.668F⁶⁶⁹ 80 per cent of workplaces with over 10,000 employees provided paid FDV leave.669F⁶⁷⁰

[574] Dr Stanford concludes that this data reveals that ‘the proportion of Australian workers with access to paid FDV entitlements will be substantially larger than the proportion of workplaces which offer it.’670F⁶⁷¹

[575] Relying on previous studies that estimate the cost to the Australian economy of FDV, the Stanford Report concludes that the economic costs of FDV are approximately one per cent of national GDP, which, in present day terms corresponds to costs of over $20 billion per year.671F⁶⁷²

[576] Citing evidence that the incidence of FDV has increased as a result of the COVID-19 pandemic, Dr Stanford assumes that the estimate of the costs of FDV to the economy is ‘likely to understate the current incidence and costs’ of FDV in light of the pandemic.672F⁶⁷³

[577] Dr Stanford concludes that while the costs of paid FDV leave cannot be weighed directly against the overall costs of FDV, they can be reasonably compared to one another.673F⁶⁷⁴

[578] ACCI and Ai Group submit, for various reasons, that we should give little if any weight to Dr Stanford’s evidence.

[579] ACCI submits that considerable caution should be exercised in applying Dr Stanford’s conclusions relating to the operation of an entitlement of paid FDV leave provided under enterprise agreements (that have been the subject of bargaining), to how they will function under an entitlement to be included in modern awards. ACCI submits that during cross examination, Dr Stanford made a number of concessions and acknowledged a range of issues with his Report.674F⁶⁷⁵

[580] Ai Group challenges Dr Stanford’s evidence on a number of bases.675F⁶⁷⁶

[581] In relation to the Stanford Report’s ‘high end estimate’, Ai Group submits that the ABS data on the impact of violence on victims utilised by Dr Stanford ‘does not distinguish between different types of violence’.676F⁶⁷⁷ It says:

‘There is however no basis for assuming that the proportion of persons who experience FDV and take time off work during the following 12 month period is the same as those who experience violence generally.’677F⁶⁷⁸

[582] Ai Group submits that, as a result, the estimates provided do ‘not permit a sufficiently clear or accurate assessment regarding the prevalence of FDV’.678F⁶⁷⁹

[583] Ai Group also submits that Dr Stanford’s evidence from the informal surveys with employers (2016 and 2021) should be ‘afforded little if any weight’.679F⁶⁸⁰ It says:

‘Dr Stanford’s research in 2016 related to five employers and in preparation for these proceedings, information was collected from three employers. Self-evidently, the results of this research are not representative of employers generally and they should not be extrapolated to draw any general conclusions or findings.’680F⁶⁸¹

[584] In reply, the ACTU submits that ‘there is no suggestion in the material that…Dr Stanford’s analysis of utilisation rates, [is] incorrect’681F⁶⁸² and that:

‘In circumstances where there is no single data source that can positively answer the question as to the likely utilisation rate of a paid FDV leave entitlement – and nor could it rationally be expected that such a source exist – the ACTU submits that the proper approach is to consider the evidence as a whole. Dr Stanford’s reports perform that task. The overwhelming preponderance of the evidence is that utilisation rates are likely to be low, and correspondingly, so will be the costs of providing paid leave.’682F⁶⁸³

[585] In our view, Ai Group overstates the deficiencies in the Stanford Report. Some of Ai Group’s criticisms were not ultimately pressed683F⁶⁸⁴ or were unfair, in the sense that the criticism advanced in the submission had not been put to Dr Stanford in cross-examination.684F⁶⁸⁵ While Ai Group’s critique of Dr Stanford’s evidence is somewhat overstated, it is evident to us that the methodology in the Stanford Report is not as robust as that in the Duncan Report, a point to which we return shortly.

7.4.2 Professor Duncan

[586] Professor Duncan is the Director of the Bankwest Curtin Economics Centre and Bankwest Professor of Economic Policy at Curtin University. Professor Duncan prepared 2 expert reports: the Duncan Report and the Duncan Supplementary Report. This section outlines the methodology of the Duncan Report.

[587] The Duncan Report was prepared in response to the ACTU’s request that Professor Duncan provide an expert report addressing the following questions:

1. What is the likely cost (if any) to employers of award-covered employees, including small and medium sized businesses, of providing 10 days paid family and domestic violence leave?

2. Is there a cost to employers of award-covered employees, including small and medium sized businesses, of not providing an entitlement of 10 days paid family and domestic violence leave? If the answer to this question is yes, please provide an estimate of the likely cost.

3. What are the likely benefits (if any) for award-covered employers and employees, including small and medium sized businesses, of the provision of an entitlement of 10 days paid family and domestic violence leave?685F⁶⁸⁶

[588] A key finding in the Duncan Report is that the total annual cost to employers of providing an entitlement of 10 days paid FDV leave to award-covered employees is between $13.1 million and $34.3 million per annum.686F⁶⁸⁷ The ACTU relies on the Duncan Report as evidence of the estimated cost of providing paid FDV leave.687F⁶⁸⁸

[589] The Duncan Report uses data on the prevalence of FDV among workers to estimate the cost of providing 10 days’ paid FDV leave to award-covered employees and uses the following data:

● The number of likely employed victims/survivors of family and domestic violence in 2019, calculated by reference to data in the PSS regarding prevalence rates, by age and sex;688F⁶⁸⁹

● The average weekly wage of award-covered employees, by sex, using data from Wave 19 of the Household Income and Labour Dynamics in Australia (HILDA) survey, and;689F⁶⁹⁰

● The estimated proportion of employed victims/survivors of FDV who took time off work in the 12 months following the reported incidence of violence.690F⁶⁹¹

[590] The Duncan Report provides a range of estimates of the costs of providing 10 days paid FDV leave to award covered employees:691F⁶⁹²

1. Applying the assumptions from Dr Stanford’s 2016 report that women would access an average of 7.8 days of leave, and men 5.9 days, the estimated total cost to employers of providing 10 days of paid FDV leave would be $13.1 million.

2. The above estimate is adjusted to take into account the 2.5 per cent increase in wages as per the most recent Annual Wage Review resulting in an estimated total cost of $13.4 million.

3. Applying utilisation rates drawn from PSS data, and assuming employees use the full 10 days of paid leave, the estimated total cost of providing 10 days of paid FDV leave to award-covered workers is $17.1 million.

4. Applying assumptions from Dr Stanford’s 2016 report that uptake rates of FDV leave may double, the estimate increases to approximately $34.3 million.

[591] The methodology in the Duncan Report can be reduced to 4 steps.

Step 1

[592] Professor Duncan estimates the probability of experiencing FDV by age and sex using the 2016 PSS data and assumes that prevalence has remained stable in the period to 2021. The probability of experiencing FDV is then applied to the population estimates of award wage holders by age and sex categories.692F⁶⁹³

[593] Table 1 in the Duncan Report (extracted below) shows the estimated prevalence rate of FDV for wage and salary earners in Australia as at June 2021, by age and sex. It is estimated that 186,400 employed women and 142,400 employed men in Australia experienced FDV in the last 12 months.693F⁶⁹⁴ Prevalence rates of FDV among employed people decrease consistently with age for both women and men, with rates typically higher for women (3.0 per cent) compared to men (2.1 per cent).694F⁶⁹⁵

Table 1. Number and share of employed persons experiencing family and domestic violence (FDV) in the last 12 months: by age and gender

		Aged 18-24			Aged 25-34		Aged 35-44		Aged 45-54			Aged 55-64			Age 65 years +		All ages
Female			Male	Female		Male	Female	Male	Female	Male	Female		Male	Female		Male	Female	Male	Persons
Employed persons, June 2021 ('000s)	963		956	1,439		1,603	1,385	1,546	1,291	1,359	940		1,047	247		392	6,265	6,903	13,168
Estimated number of employed people experiencing FDV, June 2021	60.3		33.8	48.2		45.1	37.7	29.4	25.0	17.3	13.2		12.4	2.0		4.4	186.4	142.4	328.8
Probability of experiencing FDV	6.3%		3.5%	3.3%		2.8%	2.7%	1.9%	1.9%	1.3%	1.4%		1.2%	0.8%		1.1%	3.0%	2.1%	2.5%

^{Notes: Estimates of the number of people experiencing family and domestic violence in the last 12 months include those subjected to violence from current or previous partners or family members. Prevalence rates are calculated as the ratio of FDV incidence to the number of employed people, by age and gender. Counts are uprated to June 2021 using ABS counts of employed persons by age and gender.}

^{Source: BANKWEST CURTIN ECONOMICS CENTRE | Authors’ calculations based on ABS Personal Safety Survey (2016) and ABS Cat. 6291.0.55 Table 1 (Labour force status by Age, Social marital status, and Sex)}

Step 2

[594] The Duncan Report uses data on time taken off work by employees experiencing FDV from the 2016 PSS utilising the family relationship to the perpetrator as a filter in the PSS TableBuilder.695F⁶⁹⁶

[595] Table 2 in the Duncan Report (extracted below) shows the estimated proportion of male and female employees who took time off work in 2016 as a result of experiencing family related violence of different forms. These include the incidence of family violence (from partners, parents, siblings or relatives), intimate partner violence, current partner violence, or current and/or previous partner violence.696F⁶⁹⁷

Table 2. Share of employed taking time off work due to experiencing FDV in last 12 months

Nature of most recent experience of family related violence
		Violence from family member	Intimate partner violence	Current partner violence	Current and/or previous partner violence	Highest share
Share of employees taking time off work as a result of FDV	Men	1.3%	2.3%	0.0%	2.7%	2.7%
	Women	16.0%	15.9%	17.2%	20.1%	20.1%

^{Source: BANKWEST CURTIN ECONOMICS CENTRE | Authors’ calculations from ABS Personal Safety Survey, 2016.}

[596] The data shows that a significantly higher proportion of women take time off as a result of FDV compared with men.697F⁶⁹⁸ Between 15.9 per cent and 20.1 per cent of women who have experienced FDV took leave due to FDV (with these proportions varying depending on the nature of the FDV experienced), while these proportions were much lower for males, ranging from 0.0 per cent to 2.7 per cent.698F⁶⁹⁹ The Duncan Report uses the highest values in the table (20.1 per cent for women and 2.7 per cent for males) for the purpose of estimating the cost of an entitlement to paid FDV leave (see row 4 in Table 3).699F⁷⁰⁰

Step 3

[597] To estimate the cost of providing 10 days of paid FDV leave for award-covered employees, the Duncan Report uses weekly wage data for workers on award wages from Wave 19 of the HILDA survey, uprated to June 2021 dollars using CPI data from the ABS.

[598] Total leave payments to employees affected by FDV are estimated by multiplying the number of employed people that took time off work in the last 12 months following the incidence of FDV by the 10 days average wage for the respective sex and age group. The results are shown in Table 3 in the Duncan Report (extracted below).

Table 3. Estimated cost of 10 days paid FDV leave, award-covered employees

^{Notes: Estimates of the number of people experiencing family and domestic violence in the last 12 months include those subjected to violence from current or previous partners or family members. Prevalence rates are calculated as the ratio of FDV incidence to the number of employed people, by age and gender. Counts are uprated to June 2021 using ABS counts of employed persons by age and gender. The proportion of employees on award wages by age and gender are calculated using data on pay setting arrangements from the HILDA survey, Wave 19.}

^{Source: BANKWEST CURTIN ECONOMICS CENTRE | Authors’ calculations using HILDA (2019) ABS Personal Safety Survey, 2016.}

[599] Using data on the proportion of male and female workers in different age bands who are on modern award wages, the Duncan Report estimates the number of award-covered employees who have experienced FDV in the last 12 months (the third row of Table 3).700F⁷⁰¹ Overall, it is estimated that 54,100 female and 26,600 male award-wage holders have experienced FDV during the previous year (80,800 in total), the majority of whom are aged 34 years and under.701F⁷⁰²

[600] The Duncan Report starts with the assumption that award-wage workers who have experienced FDV during the past 12 months will access paid FDV leave entitlements at the same rates as under current arrangements (using the maximum rates shown in Table 2). The cost of 10 days of paid FDV leave is estimated as the number of award-covered employees who have experienced FDV in the last 12 months (Table 3 row 3), multiplied by the share of those workers who access paid FDV leave (Table 3 row 4), times 10 days of average pay for modern award wage holders (Table 3 row 5).702F⁷⁰³

[601] Assuming that the share of employees that took time off work remains constant and employees use the full 10 days of paid leave, the estimated total cost of providing 10 days of paid FDV leave to award-covered workers is $17.1 million (Table 3 row 6).703F 704

Step 4

[602] A number of the assumptions underpinning the analysis in Table 3 are then tested to provide some sensitivity analysis of the estimated costs of an entitlement to10 days’ paid FDV leave.

[603] The Duncan Report generated costings based on different assumptions. Using Stanford’s (2016) assumptions that women would access an average of 7.8 days of leave and men would access 5.9 days, it is estimated that the total cost of providing 10 days of paid FDV leave to award-reliant employees would be $13.1 million (representing the lower bound of his estimates), of which $12.4 million is for female employees and $0.7 million for male employees.704F 705 Adjusting this for the 2.5 per cent increase in award wages from the Annual Wage Review 2020-21, the total cost estimate increased to $13.4 million.705F706

[604] The Duncan Report then assumed that the introduction of paid FDV leave might increase utilisation of leave by employees. Using Stanford’s (2016) assumption that the proportion of employees that take time off will double under a paid FDV leave provision, it is estimated that the total cost of 10 days FDV leave is approximately $34.3 million, which represents the upper bound to the cost estimates in the Duncan Report.706F 707

[605] The results of the sensitivity analysis are set out in Table 4 of the Duncan Report reproduced below.

Table 4. Estimated costs of 10 days of paid FDV leave for award-covered employees: alternative scenarios

	Female	Male	Persons
	$m	$m	$m
Paid FDV leave accessed at the same rates as under current arrangements; average number of leave days per year as per Stanford (7.8 days for women, 5.9 days for men)	12.4	0.7	13.1
Same modelling assumptions as above, adding 2.5% Annual Wage Review increase	12.7	0.8	13.4
Paid FDV leave accessed at the same rates as under current arrangements; 100% utilisation of paid FDV leave days (10 days per year)	15.9	1.2	17.1
Paid FDV leave accessed at double the rates compared to current arrangements; 100% utilisation of paid FDV leave days ( 10 days per year)	31.8	2.5	34.3

^{Source: BANKWEST CURTIN ECONOMICS CENTRE – Authors’ calculations based on HILDA (2019), ABS Personal Safety Survey (2016) and Annual Wage Review 2020-21}.

[606] ACCI submits that Professor Duncan’s evidence should be treated with caution and that an appropriate conclusion to arrive at when considering Professor Duncan’s Report is that it is based on a series of arbitrary assumptions and should be afforded little weight when coming to an estimate of the likely cost of the ACTU claim.707F 708

[607] In essence, ACCI submits that Professor Duncan’s Reports provide no evidentiary basis to depart from the Full Bench’s conclusion in the earlier proceedings.708F 709

[608] Similarly, Ai Group submits:

‘First, to the extent that Professor Duncan relies on the 2016 Breckenridge report and the Stanford 2016 report, we refer to and rely on [18] and [20] of the submissions above. The deficiencies and shortcomings in those reports wholly undermine the reliability of the analysis undertaken by the Professor regarding the cost of [FDV leave].

Second, the Professor’s cost analysis is based on PSS data, which has various limitations. This also undermines the reliability of the analysis.

Third, in relation to [47] of the Professor’s report; employers who currently provide [FDV leave] are most likely to be large employers. The cost burden that will face small and medium businesses will therefore, typically, not be offset by existing [FDV leave] entitlements.

Fourth, although the Professor says that employers can partly reduce the costs of lost production from time lost from work due to employees’ financial stress by providing [FDV leave], he does not quantify or describe the extent of any such reduction that might be realised. Any reduction may in fact be marginal.

Finally, at its highest, the Professor says that:

•  Employment and financial independence can play an important role in preventing FDV.

•  It is possible that [FDV leave] may affect the violence norms and prevalence beyond the case of an individual employee.

•  The research suggests that providing support to employees affected by FDV could have a positive effect on productivity.

•  [FDV leave] could reduce turnover, hiring and training costs.

•  Time cost from paid work could be more severe if employees face financial constraints for adjustments they need to make following FDV.’709F 710

7.5 Conclusion

[609] ACCI and Ai Group submit, in essence, that the material before us does not provide a sound evidentiary basis to depart from the conclusion in the July 2017 Majority Decision. In other words, there is insufficient evidence to enable us to assess the extent of any increase in employment costs if modern awards were varied to include an entitlement to paid FDV leave.

[610] We proceed our analysis of the expert evidence by noting that it is inherently difficult to demonstrate, by direct evidence, the cost of a proposed award variation.710F 711 Further, estimating the economy-wide or per-employee cost of the establishment of a paid FDV entitlement in all modern awards is an inherently problematic task. The entitlement is necessarily contingent in nature, and the task involved in estimating cost requires the making of assumptions as to the extent of the usage of such an entitlement (both as to the proportion of employees who will ever use it and the number of days of leave required if it is accessed) based on very limited data that is difficult to extrapolate to the entire modern award-covered workforce. Professor Duncan and Dr Stanford both properly acknowledge and try to account for the limitations in the data.

[611] As observed in the House Committee Report, although data collection in this area has improved, there is more to do to ensure that governments and the community have a clear picture of FDV.711F 712 ACCI accepted the thrust of the ACTU’s submission that there is no single data source which exists that can perfectly predict likely utilisation rates and as such the likely cost of its claim, it submits that we are still required to come to an informed and reasoned position in relation to these matters. We agree with the latter proposition and we have done so.

[612] While it is unrealistic to expect that a cost estimate can be arrived at with any degree of mathematical precision, we consider that the expert reports have identified upper range cost estimates that are of sufficient utility to permit us to conclude that the introduction of paid FDV leave will not result in significant cost being imposed on employers generally or the national economy.

[613] Professor Duncan and Dr Stanford rely on different data sets to determine the prevalence of FDV. Professor Duncan utilises data sets relating to the prevalence of current and former partner violence as well as family violence. Professor Duncan estimated the probability of experiencing FDV by age and sex, and then applied this to the population estimates of ‘award wage holders’ by age and sex categories. By so doing, Professor Duncan is able to get a better picture of the prevalence of FDV in ‘award-covered’ employees.

[614] As to utilisation, Professor Duncan relies on data from the PSS which shows the proportion of employees who experienced FDV (including violence from a family member, intimate partner violence, current partner violence and current and/or former partner violence) and took time off work in the previous 12 months.

[615] We consider that Professor Duncan’s methodology is robust and transparent. There is however one significant flaw we can identify in the methodology (albeit it was not identified by ACCI or Ai Group). The Duncan Report makes the mistake of equating ‘award wage holders’ – that is, ‘award reliant’ employees who derive their actual wage rate from a modern award – with ‘award-covered’ employees, which we assume means persons who are covered by a modern award and would obtain the benefit of an award entitlement to paid FDV leave. If we award paid FDV leave, it will immediately become an entitlement to any national system employee to whom a modern award ‘applies’ in accordance with s.47 of the FW Act. This will not include employees to whom an enterprise agreement applies (see s.57) or employees who have guaranteed annual earnings above the high income threshold (see s.47(2) and s.329), but will include all other employees covered by the award including those who receive above-award earnings through individual contracts or informal individual or collective arrangements – i.e. employees who are not ‘award wage holders’ or award reliant. Employees who are ‘award reliant’ are a subset of a larger cohort of employees to whom modern awards apply. The estimates in row 3 of Table 3 of the Duncan Report, which we have earlier set out, of the numbers of award employees experiencing FDV are calculated based on the number of ‘award reliant’ employees employed in the workforce. These numbers would be higher if they were calculated based on the number of employees to whom modern awards apply, and who will enjoy the entitlement if awarded.

[616] The same flaw has led the Duncan Report (in the fifth row of Table 3) to use HILDA data for award-reliant workers to calculate the estimated total wage cost, when in fact many employees who would become entitled to a paid FDV leave entitlement in modern awards will be in receipt of over-award wages.

[617] However, this would not cause us to conclude that the Duncan Report calculations are without value as an estimate because those calculations proceed on a number of assumptions that clearly overstate the likely cost of FDV leave. First, it assumes that the ACTU claim will be granted in full, so casual employees are included in the number of affected employees. However, as we address in Chapter 8.3.2, we do not propose to grant the claim in respect of casual employees. Casual employment has constituted approximately 25 percent of the Australian employee workforce over the last 2 decades (although this has recently fallen significantly because of the effect of the COVID-19 pandemic).712F 713 Second, the assumption that usage of FDV leave, if awarded, will double both as to the proportion of employees accessing leave and the number of days taken when accessed, compared to current usage rates where an entitlement exists is clearly an overestimate (and was intended by Professor Duncan to be such in order to establish an absolute upper range estimate). If appropriate adjustments are made to take into account all the countervailing matters we have identified, it is unlikely that this will produce a different result of any significant order.

[618] In respect of the Stanford Report, as noted above, we consider that Ai Group’s submissions overstate the deficiencies in the Stanford Report. Some of Ai Group’s criticisms were not ultimately pressed713F 714 or were unfair, in the sense that the criticism advanced in the submission had not been put to Dr Stanford in cross-examination.714F715 However, having said that, there are obvious limitations in Dr Stanford’s methodology which make it less robust than that of Professor Duncan:

•  Dr Stanford’s ‘informal survey’ relies on findings from 3 employers in 2021 and 5 employers in 2016 and cannot be said to be representative of wider employer behaviour.

•  Dr Stanford’s treatment of the PSS data is inconsistent with Professor Duncan’s. The data gathered by Professor Duncan utilising the TableBuilder function provides a far more detailed and accurate assessment of rates of FDV and utilisation of leave. In contrast, Dr Stanford relied on data from ‘intimate partner violence’, which does not include violence from family members.

•  Dr Stanford does not disaggregate data by age or sex, and applies the global figure to all employees, not simply award-covered employees, to determine prevalence rates.

•  Dr Stanford relies on data on the number of employees who took time off work due to violence from any perpetrator, not limited to those who took time off as a result of FDV.

•  While Dr Stanford relies on prevalence rates from the previous 12 months, he relies on utilisation of leave rates based on the most recent incident experienced in the last 10 years. This means the incident may not have occurred within the previous 12 months and as a result, the claim rate is calculated on 2 components with different time periods.

[619] Dr Stanford also calculated the cost of providing paid FDV leave based on the average labour compensation for all Australian workers. As Professor Duncan pointed out, this approach has limitations as it does not allow a consideration of differences in wage based on age, sex and method of wage setting (i.e. modern award, enterprise agreement and individual agreements).715F 716 This may be accepted, although Dr Stanford’s approach does have the advantage of taking some account of the application of paid FDV leave to award-covered employees who are paid above-award rates of pay.

[620] We also note that Dr Stanford, in our view correctly, makes a deduction from his cost estimates to account for employees who already have an entitlement to paid FDV leave.

[621] The attack on the expert evidence is essentially directed at the assumptions made in making the relevant calculations and there is no suggestion that the calculations in the Reports are mathematically incorrect. It was not specifically put to either Professor Duncan or Dr Stanford that their estimates of the likely cost of 10 days’ paid FDV leave were unreliable or unsafe. No contradictory economic evidence was called by the opposing parties. Ai Group contends that ‘it would be feasible to present material that more reliably estimates utilisation rates than that which is here before the Commission’,716F 717 but adduced no such evidence itself. ACCI acknowledges that it has ‘no evidence’ that the provision of 10 days’ paid FDV leave will result in extraordinary costs for all employers.717F718

[622] The weight of the evidence supports a finding that the utilisation rate of a 10 day paid FDV leave entitlement is likely to be low. Such a finding is consistent with the assumptions which underpin the expert evidence.

[623] Taking account of the upper estimates in the expert evidence we find that varying modern awards in accordance with the provisional model paid FDV leave term expressed in Chapter 8.4 would have no significant adverse impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[624] The Duncan Report notes that the data suggests that ‘small and medium sized businesses will bear a greater costs burden’ in the provision of paid FDV leave; but concludes that these costs are likely to be largely offset by improved productivity and reduced absenteeism.718F 719 In Chapter 6.6.2(ii) we deal with the benefits for employers of introducing a paid FDV leave entitlement. In that chapter, we accepted that the introduction of paid FDV leave will be of benefit to some employers, but we rejected the ACTU’s contention that the benefit accruing to employers would ‘largely offset’ the cost.

[625] As noted in Chapter 6.3.2 the Employer Survey found that one in 5 organisations provided employees with paid FDV leave. This varied by business size. Notably, 20.7 per cent of organisations with one to 5 employees provided paid FDV leave, compared to 35.5 per cent of organisations employing more than 100 employees.719F 720

[626] We accept that such a variation to modern awards is likely to give rise to greater variability in terms of employment cost at the enterprise level. For some employers, particularly those who do not currently provide paid FDV leave, the employment costs may be significant depending on the number of employees who access the entitlement and the number of days of paid leave they take. The evidence before us in respect of utilisation rates suggests that such costs are unlikely to be substantial.

[627] Contrary to the submissions advanced by the opposing parties the material before us does address the lacuna in the evidence regarding the costs of paid FDV leave identified in the July 2017 Majority Decision.

8. Consideration

8.1 Decision Tree

[628] The ACTU claim raises a number of decision points which are set out in the decision tree below. In Background Document 1 the parties were asked to identify their proposed answers to each of the numbered questions in the decision tree by reference to their submissions and the evidence; the parties answers are set out in Background Document 2 and we need not repeat them here.

[629] The employer parties oppose the ACTU claim generally and in particular:

•  the provision of 10 days’ paid FDV leave;

•  the extension of paid FDV leave to casual employees;

•  the change in the definition of ‘family and domestic violence’ to include behaviour of an unrelated member of the employee’s household;

•  the rate of pay for paid FDV leave; and

•  the additional unpaid leave.

[630] This chapter deals with the merits of each element of the ACTU claim; we begin by considering the broad lines of argument advanced by the parties.

8.2 The Broad Lines of Argument

[631] The essence of the ACTU claim is that modern awards be varied to provide all employees with 10 days’ paid FDV leave in a 12 month period and up to 5 days’ unpaid FDV leave on a per occasion basis.

[632] The overarching premise of the ACTU’s claim is that FDV is a workplace issue that requires a workplace response and that ‘paid FDV leave provides a critical mechanism for employees to maintain their employment and financial security, while dealing with the effects of FDV’.720F 721

[633] The ACTU identifies 8 propositions, findings and considerations which it contends should be drawn from the evidence:

1. FDV is ubiquitous in Australia

2. FDV is a workplace issue

3. The cost of FDV

4. The necessity of paid FDV leave

5. The cost of providing paid FDV leave

6. 10 days of FDV leave is necessary to provide a minimum safety net

7. FDV leave must be paid in order to provide a minimum safety net

8. Supplementary unpaid FDV leave of 5 days per occasion is necessary.

[634] The opposing parties contend that modern awards should not be varied to provide for paid FDV leave. It is argued that any such variation is not necessary, in the sense contemplated by s.138, and would not be ‘fair’ to employers, in the sense contemplated by the modern awards objective.

[635] Despite the obvious points of contention between those supporting the ACTU claim and the opposing parties it is also apparent that there is some common ground.

[636] In closing oral argument counsel for the ACTU said:

‘I am sure, I will be corrected if I am wrong about this, but both ACCI and Ai Group acknowledge that paid Family and Domestic Violence Leave is desirable, or at the very least is beneficial for some employees.’721F 722

[637] ACCI and Ai Group raised no objection to counsel’s observation.

[638] In February 2022, Ai Group publicly released a number of ‘Federal Election Policy Statements’ including: ‘Workplace Relations Policy – Gender Equality and Increased Workforce Participation’ (Ai Group Federal Election Policy Statement). This particular policy statement proposes the adoption of a number of initiatives to ‘improve gender equality … workforce diversity and inclusion [and the enhancement] of female workforce participation and women’s economic well-being’.

[639] Among the initiatives proposed in the Ai Group Federal Election Policy Statement is a publicly funded FDV leave payment linked to the existing unpaid FDV leave entitlement in the FW Act. In support of the proposed payment the policy statement says:

‘Family and domestic violence is a community issue and more needs to be done to both prevent and respond to its occurrence. Family and domestic violence does not just impact employees, but the self-employed and business owners who may be unable to work because of the impact of the violence they are experiencing. The pandemic has contributed to an increase in family and domestic violence in the community and further Government support, in addition to the range of measures already adopted by Governments and employers, is required.

Ai Group calls for the creation of a publicly-funded Family and Domestic Violence Leave Payment (FDVLP) to apply to persons who are unable to work because they are experiencing family or domestic violence.

Ai Group acknowledges that some larger organisations provide their own paid family and domestic violence leave to employees, either in line with the structure of the Fair Work Act 2009 (Cth) (FW Act) unpaid leave entitlement of up to five days, or through other forms of paid leave. This should not prevent such employees accessing the publicly funded entitlement, consistent with the way in which the existing publicly funded Paid Parental Leave scheme operates.

The quantum of the FDVLP should be aligned with the unpaid family and domestic violence leave entitlement of 5 days per year contained in the National Employment Standards (NES) in the FW Act, calculated at the adult minimum wage.

The FDVLP should also extend to eligible independent contractors and the self-employed who are unable to work due to family and domestic violence.

Given the well-documented instances of financial abuse and financial vulnerabilities of persons experiencing family violence (particularly where the costs of caring for children are involved), it is not appropriate that this payment be means-tested.

We also consider that this proposal for a publicly-funded FDVLP is consistent with the two pillars of response and recovery in the Australian Government’s Draft National Plan to End Violence Against Women and Children 2022-2032.’722F 723

[640] Background Document 1 asked Ai Group to elaborate on its proposal and whether there had been any response from the Australian Government to its proposed initiative.

[641] In response, Ai Group said that the proposal was for the development of a publicly-funded FDV leave payment that would operate in a similar manner to the current Australian Government paid parental leave scheme.723F 724 Ai Group envisages such a scheme would be broadly aligned with the current NES entitlement, in the basic sense that it would provide for up to 5 days of paid leave per year (based on the NES entitlement to 5 days unpaid leave) at the adult minimum wage.724F725 The precise manner in which such a scheme would be constructed and administered would be the subject of consultation with Government, but Ai Group envisaged that it would be taxpayer funded, apply to all employees (including casual employees) as well as some independent contractors, and not means tested.725F726

[642] Background Document 2 posed the following question to Ai Group: Is it implicit in Ai Group’s proposal that they acknowledge the need to provide a paid leave entitlement?

[643] In response, Ai Group submits the proposed measure ‘should not be construed as reflecting a view that FDV leave is necessary’ and that it should not prejudice its position in these proceedings.726F 727 Ai Group says:

‘FDV is a serious and pervasive social issue. It is an entirely unacceptable scourge that, in our view, warrants both continued community efforts to eradicate it and community support for those that suffer from it. We also recognise that some individuals may benefit from the provision of financial support in circumstances where they have experienced FDV and that it would be desirable, from a broad social policy perspective, that such support be provided.’727F 728

[644] Ai Group submits it ‘does not agree that it is necessary’ to provide paid FDV leave in modern awards in the sense contemplated by s.138 and says:

‘These proceedings are not, and should not be, directed at identifying what may be a best practice, ideal or even beneficial level of support for persons experiencing FDV. These are not irrelevant considerations, but the task before the Commission is different and more confined.’728F 729

[645] The ACTU responded to Ai Group’s submission during closing oral argument submitting ‘it must be implicit in the Ai Group’s proposal that they accept there is a need for such a scheme’ or at the very least that Ai Group considers paid FDV leave is ‘meritorious’.729F 730 The ACTU argues that Ai Group’s submission that the Commission should not infer from its proposal that paid FDV leave is necessary ‘begs the question as to why Ai Group would propose a scheme that isn’t necessary’.730F731

[646] There is considerable force in the ACTU’s argument.

[647] We accept that Ai Group’s advocacy for a publicly funded paid FDV leave scheme is not to be construed as reflecting a view that it is necessary to vary modern awards to provide paid FDV leave, in the sense contemplated by s.138. That said, it is apparent from Ai Group’s policy proposal that it accepts there is a need to provide the scheme it proposes. We return to this issue shortly.

[648] It is apparent that the contested issue is not about whether paid FDV leave is desirable or beneficial to employees – the contest between the parties is whether it is necessary to vary modern awards to achieve the modern awards objective by providing for paid FDV leave and additional unpaid FDV leave.

[649] In advancing their central contention that it is not appropriate to vary modern awards to introduce paid FDV leave, the opposing parties advance 5 broad merit arguments:

(i) The existing award and statutory entitlements provide a fair and relevant minimum safety net.

(ii) Paid FDV leave is a matter for Parliament/Government action.

(iii) Other social issues are not the subject of specific award provisions.

(iv) FDV leave is a matter for the enterprise.

(v) It is not fair or appropriate that employers bear the cost of such an entitlement.

8.2.1 The existing award and statutory entitlements provide a fair and relevant minimum safety net.

[650] Both ACCI and Ai Group731F 732 submit that when viewed in the context of the existing entitlements, it is not necessary to vary awards to provide for paid FDV leave.

[651] ACCI submits that the existing framework of leave entitlements is appropriate and satisfies the modern awards objective:

‘…it is not apparent that a substantial variation to the existing safety net is necessary to fulfil the modern awards objective …

If there was any doubt that further leave is necessary to satisfy the modern awards objective for either permanent or casual employees, the introduction of 5 days of unpaid FDV leave in the NES for all employees should remove that doubt.’732F 733

[652] Ai Group sets out a range of existing statutory and award entitlements that are said to be relevant to the Commission’s consideration of whether awards should be varied to provide for paid FDV leave, as follows:

Existing statutory protections and entitlements:

1. Unpaid FDV leave

2. Paid leave entitlements – personal/carer’s leave

3. Paid leave entitlements – annual leave

4. Paid leave entitlements – long service leave

5. Flexible working arrangements

6. Protection against unfair dismissal

7. General protections

8. Conversion from casual to permanent employment

9. Work health and safety legislation.733F 734

Existing award entitlements:

10. Individual flexibility arrangements

11. Time off instead of overtime

12. Make-up time

13. Annual leave in advance; and

14. Facilitative provisions.734F 735

[653] Ai Group advanced a similar argument in the earlier proceedings, which was rejected by the Full Bench in the July 2017 Majority Decision in the following terms:

‘We accept the AIG submission that the right to request flexible work arrangements would be applicable to deal with some circumstances faced by employees who experience family and domestic violence. However, we are not satisfied that that it is sufficient to meet all the circumstances faced by employees who experience family and domestic violence.

Employees who experience family and domestic violence often need to respond to incidents on short notice. Section 65 of the Act requires the request for flexible working arrangements to be in writing and the employer has 21 days to respond to the request. Further, that request may be refused on reasonable business grounds. An employee needing to attend court for the purpose of obtaining interim family court orders or interim apprehended violence orders or who needs to find alternative accommodation cannot afford to wait 21 days to see if her or his request for flexible working arrangements has been approved.

We also accept that employees, other than casual employees, who experience family and domestic violence, may be able to use personal/carer’s leave, annual leave or long service leave to enable them to deal with the consequences of the violence. An employee who is unfit for work because of either a physical or psychological injury can take personal leave. However, an employee cannot take such leave to attend court or to find alternative accommodation. Employees can use their annual leave for any purpose. However, an employee can only take annual leave at a time agreed by the employer and, while an employer may not unreasonably refuse to agree to such a request, we do not consider that there is sufficient flexibility around the taking of annual leave for it to be of sufficient assistance for employees facing the need for urgent leave. For the same reason we do not consider that being able to take long service leave will necessarily meet the employee’s needs.

While we accept that employees who experience family and domestic violence will have some protection from unfair dismissal, unlawful dismissal and adverse action we do not consider this to be sufficient. If employees have a right to family and domestic violence leave then that would be a workplace right. Employees would gain an additional protection against dismissal because an employee took family and domestic violence leave or proposed to take family and domestic violence leave ... Currently unless the employee has such an entitlement under an enterprise agreement, the employee has no such right unless their circumstances fit the current protections. For example, there is no workplace right to be absent from work to attend court proceedings or to find alternative accommodation.

We are therefore, not satisfied that the existing entitlements meet the needs of employees who experience family and domestic violence.’   735F 736

[654] In the March 2018 FDVL Decision the Full Bench adopted the conclusion in the July 2017 Majority Decision and said:

‘Ai Group contends that the current regulatory framework – in the Act and modern awards – provides a range of protections for employees, and in effect suggests that an award term providing unpaid family and domestic violence leave is not necessary.

We disagree. The same argument, in substance, was considered and rejected in the Majority Decision.736F 737 It may be accepted that employees experiencing family and domestic violence will be able to access existing entitlements in some circumstances. But the existing regulatory framework is not sufficient to address the myriad of circumstances facing employees who experience family and domestic violence. For example, there is no existing safety net entitlement permitting an employee to be absent from work on short notice to address an urgent need to find accommodation so as to remove themselves from harm.

We adopt the conclusion in the Majority Decision …’737F 738

[655] Ai Group has identified 2 differences between the protections and entitlements that exist now and those in existence at the time of the earlier proceedings (the March 2018 FDVL Decision and the July 2017 Majority Decision):

•  the unpaid FDV leave entitlement in the NES, and

•  the statutory provisions concerning casual conversion.

[656] Ai Group contends that the introduction of the unpaid FDV leave entitlement in the NES is a ‘key factor distinguishing the surrounding circumstances during the earlier proceedings and the extant proceedings’.738F 739 Ai Group relies on what it describes as ‘the combination and cumulative effect’ of the unpaid FDV leave entitlement and with other relevant statutory entitlements.739F740

[657] As to the observations in the March 2018 FDVL Decision that the safety net was ‘not sufficient to address the myriad of circumstances facing employees who experience family and domestic violence’, Ai Group submits that due to the introduction of unpaid FDV leave into the NES ‘the safety net is no longer deficient in the relevant sense’.740F 741

[658] In reply, the ACTU submits:

‘There is little or no analysis of how those provisions meet the needs of employees (permanent or casual) who need to take authorised leave from work and maintain continuity of income to deal with FDV. To the extent those provisions form part of the broad network of employers’ legislative obligations which are designed to protect employees’ interests, they are too remote from the present problem to be relevant.741F 742

[659] In relation to the question of whether the unpaid FDV leave provision has ameliorated the need for paid leave, the ACTU submits that income is critical to the concept of a safety net and that in order to truly comprise a safety net of minimum terms and conditions of employment, FDV leave must be paid leave.742F 743

[660] We accept that the NES entitlement to unpaid FDV leave provides an enhanced degree of protection to employees experiencing FDV. Absent that protection, those employees may have been unfairly dismissed or have faced other disciplinary action had they been absent from work in circumstances where no other form of leave was available. However, the NES entitlement is to unpaid FDV leave and hence does not address the fundamental issue of the financial capacity of employees to take FDV leave when they have a need to do so.

[661] The importance of paid FDV leave is canvassed in chapter 6.6.2(ii). Access to paid FDV leave provides significant assistance to employees experiencing FDV — it helps individuals to maintain their economic security; to access relevant services and to safely exit to a life free from FDV. Paid FDV leave is a critical mechanism for employees to maintain their employment and financial security, while dealing with the consequences of FDV.

[662] We reject the proposition that, when viewed in the context of existing statutory and award entitlements, it is not necessary to vary awards to provide for paid FDV leave.

[663] Findings made in the July 2017 Majority Decision and the March 2018 FDVL Decision emphasised the financial difficulties which employees who have experienced FDV may typically face. In the former decision, the majority found at [60]:

‘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.’

[664] The majority also found (at [61]) that ‘employees who experience family and domestic violence suffer economic harm as a result of disruption to workforce participation.’ As we said earlier, we affirm these findings in this decision.

[665] In the latter decision, the Full Bench also adopted the above findings, and went on to refer to evidence concerning the financial hardship facing women following separation from a violent partner, the financial impact of violence on victims including costs associated with legal proceedings, and the importance of employment, including the financial security it provides, as constituting an important pathway out of violent relationships.743F 744

[666] These findings are not addressed by the provision of unpaid FDV leave.

[667] In the July 2017 Majority Decision, the majority (at [62]-[67]) referred to evidence concerning the recent introduction of paid FDV leave through enterprise bargaining and policy, and in the government sector. The Majority said the recency of this meant that there was little evidence about the amount of leave being taken by employees in reliance on such provisions or about how much actual unpaid leave was being taken by employees which would, if the (ACTU) clause was in operation, be paid leave. However, there is significant evidence before us which addresses the issue of employees’ reliance on paid as distinct from unpaid FDV leave. As we have previously set out, the Monash Report described the link between economic security and the lack of paid FDV leave as follows:

‘When asked whether in hindsight access to family violence leave would have been helpful, numerous interview participants spoke at length about how the security of having paid leave would have made a difference to them. In particular, victim-survivors spoke about the value of having supported time away from work to plan for their safety and support their recovery. This viewpoint is captured in the comments of an interview participant, who explained:

I just needed some time to get myself together, my headspace, get some treatments, just to see where I am today. I just couldn’t believe what was happening to me, because it was a number of assaults. It was just awful.

(Bianca, interview participant)

Other participants drew comparisons between the existence of family violence leave policies and their own sense of safety, with one participant noting that had DFV leave been available, ‘My daughter would feel safe. I would feel safe’. For these victim-survivors the lack of paid family violence leave was closely associated with their experiences of economic insecurity and financial dependence during and following their experience of DFV. Research has consistently evidenced the immediate and long-term financial impacts of intimate partner violence on the economic security of victim-survivors, particularly women (Cotis and Bullen, 2015).’

[668] Significantly, the Monash Report states that only one survey respondent took unpaid FDV leave, with all other survey respondents reporting that they either did not access leave at all or accessed paid leave. The inference being that for financial reasons taking unpaid FDV leave may not have been a practicable option for respondents who had experienced FDV. The Monash Report concludes that the provision of paid FDV leave is necessary in the context of ensuring that victim-survivors of FDV maintain paid employment and continue to engage with work throughout their recovery.

[669] The Employer Survey showed employee usage of the unpaid FDV leave entitlement but also, in respect of that minority of employers that provided a paid FDV leave entitlement, reported that the most common reasons for accessing paid leave were to attend medical appointments, make arrangements for the employee’s safety, attend support services, attend court hearings and access legal or police services.

[670] The ACTU’s lay witnesses also gave evidence about the straightened financial circumstances of FDV victims and the benefit of paid FDV leave in that context. For example, Dr Victoria Jones, the Head of the Medical Unit of the Women’s Health Service in the SA Women’s and Children’s Hospital, stated in her experience the majority of FDV patients in employment were low-paid women,744F 745 and said:

‘Many women we see have left home without anything, and often with small children to care for. They sometimes don’t have access to bank accounts; they have had their income withheld by the abusive partner as part of the DV; they have no documents and nowhere to live. The vast majority of women we see are in serious financial difficulty. They often have a large number of conflicting appointments with various services at the point of leaving a violent partner.’745F 746

[671] Dr Jones also said that women who have experienced FDV who cannot access time off work often do not turn up for appointments and explain that they need to prioritise their work, which may put their medical treatment at risk.746F 747 She also said that in her experience, one of the biggest barriers to successfully leaving a violent relationship is a lack of financial resources.

[672] Marianne Crowe, a registered nurse at St Vincent’s Hospital in Melbourne who is employed in the hospital’s Social Work Department as Project Lead – Safe Communities and Equitable Health, Strengthening Hospitals’ Response to Family Violence, similarly gave evidence that in her experience low income is a key barrier to FDV patients accessing support because ‘low paid patients who do not have the time or money to access support and are terrified of losing the little income they have if they lose their job because they are not allowed to be absent or cannot afford to take time off without pay’.747F 748

[673] Gabrielle Craig, Assistant Principal Solicitor at the NSW Women’s Legal Service, who has a caseload providing legal assistance to women who have experienced FDV, gave evidence that such women often reported that the time required to take off work to attend court hearings is a major issue confronting them,748F 749 and said:

‘Working women report they are fearful it may lead to loss of income if they are not entitled to paid domestic violence leave or, in some circumstances, termination of their employment. This is often at times when they are already suffering financial hardship due to significant expenses related to escaping domestic violence, such as expenses related to moving or finding alternative housing.’749F 750

[674] Ms Craig said that she had many clients tell her they are not willing to commence or continue with legal processes or proceedings because they are concerned about the loss of income and/or about termination of their employment:750F 751

‘I have spoken with many clients over the years who have not commenced or continued with legal processes because of the financial difficulties in having to take unpaid time off work and their fear of losing their job because of the time required off work to attend to Court and other events associated with legal processes.’751F 752

[675] Ms Craig said, by contrast, that those clients she spoke to who had access to paid FDV leave had often told her that this had greatly assisted them to more effectively and safely participate in the legal process.752F 753

[676] Terese Kingston, a Service Support Worker at the Domestic Violence Resource Service in Mackay, Queensland, gave evidence to similar effect as to the capacity of victims of FDV to participate in legal proceedings:

‘During my time at DVRS, I have seen more and more employers providing access to paid family and domestic violence leave and have witnessed the huge difference this makes for private applicants who have access to it. For example, Queensland Health now provides 10 days paid family and domestic violence leave, and the local council provides 20 days paid family and domestic violence leave. For people who have access to paid leave, they do not have to worry about the financial implications of applying for a protection order and can take the time to obtain the order they need. Generally, workplaces that provide domestic violence leave have often provided ‘domestic violence in the workplace’ training to staff, which provides information about recognising and responding to signs a work colleague is experiencing domestic violence. This training and associated policies means workplaces are often able to provide or refer staff for other forms of support.

In my experience, people who do not have access to paid leave often have to drop out of the process simply because they cannot afford to take the time off work required. I would describe access to paid family and domestic violence leave as a game changer for people in these crisis situations. I have observed particular challenges for people who are casually employed and have no leave of any kind to access.’753F 754

[677] As a final example, Karyn Walsh, the CEO of Micah Projects, who has had extensive experience (particularised in her witness statement) of working with women and children experiencing FDV, said:

‘I have observed through my work that financial resources at the time of acting on decisions to leave a violent relationship are essential because people are often suddenly transitioning from a double income situation to being a sole provider for themselves and their children. There are all sorts of costs involved at this point of time, including paying for new rentals (including bonds), taking on more of a mortgage if a perpetrator has left home or been arrested, costs associated with changing schools including new uniforms, counselling for traumatised children, medication costs etc.

…

In my experience in providing support to clients in crisis, people seeking to leave violent relationships are most concerned about minimising the impact on their children and on their income and employment – these are the two most important considerations for people in crisis. They are related concerns, because disruptions to income and employment directly impact on a person’s ability to provide essential care to children, both in the immediate and longer term.

In my experience, money is a key obstacle to women leaving violent relationships. If there is concern that income or employment may be disrupted, women become very hesitant to make the decision to escape, particularly if there are children to provide for.’754F 755

[678] In summary, the evidence demonstrates that employees experiencing FDV face acute financial circumstances at the time they seek to leave violent relationships or otherwise deal with the consequences of FDV. Income security is necessary for employees experiencing FDV to bear the cost of relocating and to spend time seeking legal advice and attending court proceedings and accessing medical treatment and other forms of support. The absence of such income security may mean employees experiencing FDV do not leave violent relationships. On the basis of this evidence, we are satisfied that the current NES and award minimum safety net is not fair and relevant from the perspective of employees experiencing FDV, particularly those who are low-paid, because it does not address this necessity for income security.

8.2.2 A matter for government action

[679] The opposing parties contend that paid FDV leave is a matter for Parliament, and that government should have primary carriage of responding to FDV more generally. For the reasons that follow we find this argument unpersuasive.

[680] The opposing parties submit it is appropriate for the Commission to take into account various government measures designed to assist persons experiencing FDV,755F 756 and have identified a range of measures that they contend demonstrate that paid FDV leave is not necessary within the meaning of s.138 of the FW Act.756F757

[681] ACCI submits that Parliament has ‘displayed a clear intention’ to establish a system where:

•  employees can access unpaid FDV as part of the industrial safety net

•  employees can access financial support directly from the government to assist them to deal with the financial impacts of FDV

•  employees can bargain or negotiate with their employers to secure further FDV support including paid leave in enterprise agreements, and

•  employers can provide further FDV support as required in their own circumstances.757F 758

[682] ACCI submits Parliament has ‘explicitly rejected a decision to introduce a paid leave entitlement into the NES.’758F 759 This is said to be evident from the debates relating to proposed amendments to the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) (FDV Leave Amendment Bill 2018) which gave rise to the current NES entitlement to unpaid FDV leave and through the non-enactment of other bills seeking to achieve the same outcome. In relation to the latter, ACCI cites as an example the Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 [No 2]759F760 (the 10 Days Paid FDV Leave Bill).

[683] The short point advanced by ACCI is that if the NES entitlement to unpaid FDV leave is to be varied in any way, it should be done by statutory amendment not by the variation of modern awards. It submits the Parliament could coordinate a holistic response to the complex problem of FDV, a problem that, according to ACCI, is exponentially broader than a simple entitlement in modern awards.760F 761

[684] While Ai Group describes the existing NES entitlement as ‘a comprehensive scheme’761F 762 it does not contend that the Commission lacks power to introduce new FDV leave provisions into modern awards to supplement the NES; rather, it submits:

‘as a matter of merit, it would be preferable for the Commonwealth Government to continue to take steps to address issues related to FDV and take responsibility for the financial support to persons unable to work due to FDV.’762F 763

[685] In reply, the ACTU submits the Commission is empowered by the FW Act to vary modern awards and there is no indication that is constrained by Parliament’s ability to legislate on workers’ rights. The ACTU also submits that ‘no one body has exclusive responsibility for dealing with the impact of FDV’ and it ‘does not contend that paid FDV leave will “solve” the problem of family and domestic violence in Australia and the proposed variation should not be assessed by that standard’.763F 764

[686] As mentioned in Chapter 4 of our decision, the Commission has clear statutory power to include terms in modern awards about ‘leave…and arrangements for taking leave’ (s.139(1)(h)) and hence has power to include a paid FDV leave term in modern awards. Section 139(1)(h) is contained in Subdivision B of Division 3 of Part 2-3 of the FW Act. Section 136 relevantly provides that ‘a modern award must only include terms that are permitted or required’ by Subdivision B of Division 3 of Part 2-3 of the FW Act and must not include terms that contravene s.55 of the FW Act (ss.136(1)(a) and 136(2)(b)). Any such term is a permitted term.

[687] The modern awards objective is central to our consideration in these proceedings. We deal with this matter in detail in Chapter 9 of our decision but note here that it requires the Commission ‘must ensure that modern awards, together with the [NES], provide a fair and relevant minimum safety net of terms and conditions’ [emphasis added], taking into account the considerations in ss.134(1)(a)-(h).

[688] The interaction between the NES and, relevantly, modern awards is governed by s.55, set out earlier in Chapter 4 of our decision.

[689] Section 55(1) provides that a modern award must not ‘exclude’ the NES or any provision of the NES. Section 55(4) permits an award to include certain ‘ancillary or incidental’ terms and terms that ‘supplement’ the NES. Such terms do not contravene s.55(1) (s.55(7)). For the reasons given in Chapter 4.5 we are satisfied that the inclusion of an entitlement to paid FDV leave in modern awards would not contravene s.55(1) of the FW Act.