FWC decides on Family or Domestic Violence

 

Rohan Burn, Graduate Associate

The Fair Work Commission decision in March 2018 recognised that family and domestic violence “is an issue that impacts on workplaces and…requires specific action.”

As part of the four yearly review of modern awards, in July 2017 the Full Bench of the Fair Work Commission (“FWC”) formed the preliminary view that it was necessary to make provision for family and domestic violence leave, but that they were not satisfied that it was to include in all modern awards an entitlement to 10 days’ paid leave. However, the FWC did express the preliminary views that all employees experiencing family or domestic violence should have access to unpaid leave and that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic leave.

Parties were then provided with the opportunity to make submissions before the decision was finalised. In March 2018 the Full Bench reconvened, and decided to provide five days unpaid leave per annum to all employees (including casuals). However, it deferred consideration of whether employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave.

While the exact wording of the new model term has not been finalised, the March 2018 Full Bench decision gives a good indication of the scope of the obligations.

Proposed model term

As it is currently framed, the model term will allow an employee experiencing family or domestic violence to take five days’ unpaid leave per annum if:

  • the employee needs to take some action to deal with the impact of family or domestic violence; and
  • it is impractical for the employee to do that outside their ordinary hours of work.

The leave will be available for full-time, part-time, and casual employees. Eligible employees will be entitled to the full five days’ leave from the start of each year, but the leave will not accumulate.

In applying for the new entitlement:

  • an employee will need to give notice to their employer as soon as practicable (which may be a time after the leave has started) advising the employer of the expected period of the leave;
  • an employee, if required by the employer, will need to provide evidence that would satisfy a reasonable person that the leave is taken for the specified purpose; and
  • employers will need to take steps to ensure that the employee’s information is treated confidentially (as far as it is reasonably practicable to do so).

How this entitlement will fit in with other rights and obligations

Once the drafting of the model term has been finalised, employers will need to amend their policies accordingly. Many employers may have been dealing with this type of leave entitlement already, as it has been incorporated in a range of enterprise agreements for some time, and often on more generous terms, including paid leave entitlements. There is also an existing obligation under the Fair Work Act 2009 (Cth) to consider requests for flexible work arrangements for those experiencing family or domestic violence, and those supporting someone in this situation.

Key takeaways

  • Once the term has been finalised, employers will need to review their existing policies to ensure it meets the new minimum set by the model award term.
  •  The inclusion of casuals within the scope of this new entitlement needs to be taken into account.
  • Whether employees dealing with family or domestic violence can avail themselves of forms of paid leave, such as personal or carer’s leave, remains to be determined.

 

When is the ordinary turnover of labour an exception to the obligation to pay redundancy entitlements?

Daniel McNamara, Graduate Associate

In the recent case of United Voice v Berkeley Challenge Pty Ltd,1 the Federal Court found that a contracting business was not exempt from the redundancy pay obligations under the National Employment Standards (“NES”) in the Fair Work Act 2009 (Cth) (“FW Act”).

Background

  • The NES provides redundancy pay entitlements, but these are stated not to apply in circumstances where the employee’s employment is terminated due to the “ordinary and customary turnover of labour”.
  • In this case, the employer, Berkeley Challenge Pty Ltd (“Berkeley”), a part of the Spotless Group, conducted a contracting business that provided various services to its client, including cleaning and security services.
  • In 2014, Berkeley lost a contract that it had held for over 20 years with a Queensland shopping centre, and as a consequence decided to terminate the employment of 21 employees.
  • When the company declined to provide the affected employees with redundancy pay on the basis that the terminations were due to the “ordinary and customary turnover of labour”, the union representing the affected employees (United Voice) brought an action against Berkeley in the Federal Court seeking payment of the redundancy entitlements, among other things.

The Decision

During the proceedings, Berkeley claimed that it was an “ordinary and customary” practice within the Spotless Group to terminate the employment of employees in circumstances where the employing entity had lost a major contract.

The Federal Court rejected this argument on the basis that:

  • the exception only applies in circumstances where termination of employment is “both common, or usual, and a matter of long-continued practice”;2
  • in determining whether the exception applies, a Court will have regard to the established practices of the employer in question, which in this case was Berkeley, rather than the practices within the broader Spotless Group;
  • while it may have been customary for other entities in the Spotless Group to dismiss employees in circumstances where the employer lost a services contract, this was not the case for Berkeley; and
  • the terminations and redundancies were “uncommon and extraordinary” for Berkeley and not a matter of long-standing practice.

In coming to this conclusion, the Court considered the long-term employment of the affected employees, some of whom had worked for Berkeley for 21 years, and the 20 years that Berkeley had held this specific contract. As a result, the Court ordered that Berkeley provide the affected employees with redundancy pay in accordance with the NES.

Key takeaways 

  • The “ordinary and customary turnover of labour” does not operate as a blanket exception where on-going employment is dependent on the renewal of contracting arrangements.
  • The primary consideration is what has been the practices of the employer in question, rather than what has occurred within a broader group of related companies.
  • If an employer regards a redundancy situation as potentially coming within the “ordinary and customary turnover of labour”, legal advice should be sought to confirm that the established practices correspond to the requirements of the exception.