Questions About FWC Operation Referred To Federal Court, Delays Paid Domestic Violence Leave Decision

Thursday 15 June 2017 @ 12.10 p.m. | Judiciary, Legal Profession & Procedure

The Full Bench of the Fair Work Commission has had to delay the handing down of a landmark decision on paid domestic violence leave, due to “unprecedented circumstances” following on the resignation of Vice President Graeme Watson.  Vice President Watson was one of three members of the Full Bench deciding the case, which had reserved its decision following the conclusion of hearings.  If the application brought by the Australian Council of Trade Unions (“ACTU”), is successful, all employees covered by modern awards would be entitled to 10 days per year of paid family and domestic violence leave, which would cover activities such as attending legal proceedings, medical and financial appointments and making relocation arrangements. 

Vice President Watson’s decision rejects the implementation of the leave provision, saying he is not satisfied that the leave "is necessary to provide a fair and relevant minimum safety net of terms and conditions.” [at 146].  The other two members of the Full Board have not yet issued their decisions.

Procedural History

A statement of facts issued by Justice Ross as part of his decision on 18 May says:

“…As part of the 4 yearly review of modern awards, in or around February 2015 the Australian Council of Trade Unions (ACTU) sought inclusion of a family and domestic violence paid leave clause in all modern awards (matter AM2015/1). Matter AM2015/1 must be heard and determined by a Full Bench of the FWC.

In or around October 2015 the President of the FWC constituted a Full Bench to hear and determine matter AM2015/1. The Full Bench comprised Vice President Watson, Deputy President Gooley and Commissioner Spencer…

Written submissions and other materials were filed in matter AM2015/1 between June and October 2016, evidence was heard on 14-18 November 2016 and final oral submissions were heard on 1-2 December 2016. The hearing of the matter by the Full Bench concluded on 2 December 2016 and the Full Bench reserved its decision.

 On or around 20 January 2017, Vice President Watson wrote to the Governor-General tendering his resignation as a Member of the FWC, with effect from the close of business on 28 February 2017.

On 27 February 2017 Vice President Watson caused his decision and reasons in matter AM2015/1 to be published and sent to the parties…  Deputy President Gooley and Commissioner Spencer were not able to issue their decision or decisions at that time and to date they have not issued their decision or decisions in the matter.

At close of business on 28 February 2017 Vice President Watson ceased to be a Member of the FWC.”

Referral to the Federal Court

President Ross has now referred the matter to the Federal Court, saying this would best “facilitate certainty in the final disposition of [the] matter”.  The Federal Court will be asked whether the other two members of the Commission can hand down their decisions, whether this will constitute a full bench, and what the procedure should be if a new member, or a new Full Bench is required.

There has been no date set for the Federal Court hearing, but according to an ABC News report, the decision cannot go ahead until the full Federal Court sits in August or October.  The decision will then have to return to the Fair Work Commission.

ACTU president Ged Kearney told ABC News:

“We're disappointed it's been delayed, for sure… But at the same time we do not want to be in a situation where the decision, or any decision of the commission is challenged down the track.”

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4 yearly review of modern awards—Family & Domestic Violence Leave Clause [2017] FWCFB 1133 (Decision of Vice President Watson, 27 February 2017)

4 yearly review of modern awards—Family & Domestic Violence Leave Clause 
[2017] FWC 2752 (Justice Ross, President, 18 May 2017)

Paid domestic violence leave decision delayed due to 'unprecedented' circumstance (Georgia Hitch, ABC News, 25 May 2017)

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