Split decisions have been issued by the three Members of the FWC Full Bench that heard the Family and Domestic Violence Leave Case in which the ACTU sought 10 days of paid domestic violence leave.

On 3 July 2017, Deputy President Gooley and Commissioner Spencer handed down a joint decision rejecting the unions’ claim for separate, paid domestic violence leave but expressing a “preliminary view” that all award-covered employees should have access to unpaid domestic violence leave and should be able to access personal/carer’s leave for domestic violence purposes. The decision of Gooley DP and Spencer C followed the February 2017 decision of Vice President Watson who rejected the unions’ claim.

The FWC intends to provide the opportunity for parties to make submissions and call evidence about the “preliminary view” expressed by Gooley DP and Spencer C. The FWC has also accepted submissions that the definitions in the ACTU’s proposed clause, relating to the circumstances in which leave could be accessed, are too broad and uncertain.

The handing down of the decision of Gooley DP and Spencer C was delayed due to debate over legal issues arising as a result of Watson VP handing down his decision at a separate time to the decisions of the other two Members of the Full Bench. This is unprecedented in the FWC and its predecessor tribunals, and has not occurred in relevant Courts. Watson VP handed down his decision one day before he retired from the FWC at the end of February. At the time, Gooley DP and Spencer C were not ready to hand down their decisions.

The President of the FWC, Justice Iain Ross, decided to refer various questions of law to the Federal Court concerning whether or not section 622 of the Fair Work Act 2009 (FW Act) required another Member of the FWC to be appointed to the Full Bench once Watson VP retired from the FWC at the end of February, given that Gooley DP and Spencer C had not handed down their decisions at the time.

At a Federal Court hearing on 22 June 2017, Justice Kenny raised a series of Constitutional and other complexities associated with the questions of law referred to the Court by President Ross. Given the issues raised by Justice Kenny, President Ross held a further hearing in the FWC on 28 June 2017 at which The Australian Industry Group (Ai Group), the Australian Chamber and the ACTU all submitted that, given the issues raised by Justice Kenny, the best approach would be for President Ross to decide whether or not another Member was required to be appointed to the Full Bench before Gooley DP and Spencer C handed down their decisions. It was noted that any party that disagreed with the decision would have the right to seek judicial review of the decision in the Federal Court.

On 30 June 2017, President Ross decided that another Member of the Full Bench was not required to be appointed before Gooley DP and Spencer C handed down their decisions, as submitted by Ai Group and the ACTU. This enabled Gooley DP and Spencer C to hand down their joint decision on 3 July 2017.

Given that Gooley DP and Spencer C have invited further submissions and evidence on their “preliminary view”, another Member of the Full Bench will need to be appointed for the next stage of the case. Under the FW Act, a Full Bench must comprise a minimum of three Members.

Do you require further assistance?

For information or assistance regarding employee claims for leave, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like assistance in understanding how your company may respond to claim for family and domestic violence leave, please contact your local Ai Group Workplace lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane.

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