16.61 A modern award is an industrial instrument that regulates the minimum terms and conditions for a particular industry or occupation in addition to the statutory minimum outlined by the NES.  A modern award cannot exclude any provisions of the NES but can provide additional detail in relation to the operation of an NES entitlement.
16.62 Under the Fair Work Act, a national system employee who is not covered by an enterprise agreement and is not a ‘high income employee’ may be covered by a modern award. Evidence suggests that women are likely to be more award-reliant than men. In general, a modern award applies to employees in a particular industry or occupation and is used as the benchmark for assessing enterprise agreements before they are approved by FWA.
16.63 A number of stakeholders argued that, at the Commonwealth level, existing terms in modern awards are insufficient to respond to the needs of employees experiencing family violence, despite the provisions of the Fair Work Act being sufficiently broad to allow scope for the inclusion of family violence-related terms. In 2012 and 2014, FWA will conduct reviews of modern awards. The ALRC recommends that in the course of those reviews, the way in which family violence may be incorporated into modern awards should be considered. The provisions in the Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW) provides a useful example.
Scope for the inclusion of family violence-related terms
16.64 The Fair Work Act prescribes terms which must, must not, or may, be included under a modern award. While some stakeholders expressed the view that it is necessary or preferable to amend s 139(1) to include a new allowable term or to make specific reference to family violence in the allowable terms, the ALRC considers that s 139(1) of the Fair Work Act is sufficiently broad to allow scope for the inclusion of family violence-related terms in modern awards. For example, it provides for the inclusion of terms about:
arrangements for when work is performed—for example, variations to hours of work, rostering, notice periods and working hours;
flexibility—although IFAs may only be made to vary the effect of modern award terms including arrangements for when work is performed, rates, allowances and leave loading.
16.65 While the ALRC agrees that specific reference to family violence in s 139(1) might ‘further clarify’ the rights of employees experiencing family violence, it is not necessary in order to allow the inclusion of family violence-related terms.
16.66 The key Australian precedent for the recognition of family violence in awards is the Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW), amended in 2011, under which NSW public servants are entitled to five days special leave and use of other forms of leave for the purposes of responding to family violence, as well as flexible working arrangements. There are also a range of other NSW awards which have now been varied to include family violence provisions.While the NSW Crown Employees Award is a state award, the provision provides a useful guide as to the way an award may incorporate a family violence provision. The provision is reproduced below.
Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW)
84A. Leave for Matters Arising from Domestic Violence
84A.1 The definition of domestic violence is found in clause 3.71 of this award.
84A.2 Leave entitlements provided for in clause 71, Family and Community Service Leave, clause 79, Sick Leave and clause 81, Sick Leave to Care for a Family Member, may be used by staff members experiencing domestic violence.
84A.3 Where the leave entitlements referred to in subclause 84A.2 are exhausted, Department Heads shall grant Special Leave as per clause 84.11.
84A.4 The Department Head will need to be satisfied, on reasonable grounds, that domestic violence has occurred and may require proof presented in the form of an agreed document issued by the Police Force, a Court, a Doctor, a Domestic Violence Support Service or Lawyer.
84A.5 Personal information concerning domestic violence will be kept confidential by the agency.
84A.6 The Department Head, where appropriate, may facilitate flexible working arrangements subject to operational requirements, including changes to working times and changes to work location, telephone number and email address.
16.67 The NSW Crown Employees Award was also varied to incorporate a definition of ‘domestic violence’ as defined in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and to provide that, where an employee’s leave for matters arising from domestic violence has been exhausted, the Department Head shall ‘grant up to five days per calendar year to be used for absences from the workplace to attend to matters arising from domestic violence situations’.
Should family violence-related terms be included?
16.68 The ALRC considers the inclusion of such terms is consistent with the modern awards objective of promoting social inclusion through increased workforce participation—primarily by ensuring employees experiencing family violence can make flexible working arrangements or access leave to deal with circumstances arising from family violence, which increases the likelihood of their retaining employment.
16.69 The majority of stakeholders who addressed this issue expressed the view that existing terms in modern awards are inadequate to respond to the needs of employees experiencing family violence. A range of stakeholders supported the inclusion of family violence-related terms in modern awards, in particular to provide a safeguard for victims of family violence covered solely by an award. For example, the ADFVC submitted that while modern awards may provide for
averaging of hours of work over a certain period, suggesting scope for temporary variation of regular hours, this merely provides a mechanism for the employer to allow scheduling changes where they are mutually agreeable. It does not provide a right or entitlement to temporary (or ongoing) rearrangement of shifts, hours or spans for employees who need time off for court or other appointments, or simply cannot work their regular scheduled hours due to the emotional impact of the violence on their work capacity.
Upcoming reviews of modern awards
16.70 The tension between the need to ensure that modern awards are relevant and take account of changes in community standards and expectations, and the need to ensure a simple and stable modern award system, appears to be resolved in part by the requirement that FWA conduct reviews of the modern award system. FWA will undertake reviews of modern awards in 2012 and 2014 and in the course of those reviews FWA may make determinations varying modern awards. The manner in which the reviews will be conducted is yet to be decided, but is likely to involve public submissions and hearings.
16.71 Under the Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (Cth), FWA is required to undertake an initial review of modern awards to be conducted from 1 January 2012. The scope of the review is limited to FWA considering whether modern awards achieve the modern awards objectives and are operating effectively, without anomalies or technical problems arising from the award modernisation process.
16.72 In addition, s 156 of the Fair Work Act provides for review of each modern award every four years. The first review of this kind must commence as soon as practicable after 1 January 2014. The Explanatory Memorandum to the Fair Work Bill stated that ‘these reviews are the principal way in which a modern award is maintained as a fair and relevant safety net of terms and conditions’.
16.73 In the course of the reviews, FWA may make determinations varying modern awards, making additional modern awards or revoking existing modern awards. FWA may also vary or revoke a modern award outside of the four-yearly review process if necessary to meet the modern award objectives. Accordingly, the ALRC considers that, rather than proposing the inclusion of a new allowable term (which is probably unnecessary in any event), or outlining the form in which family violence-related terms may be incorporated into modern awards, it is more appropriate to defer consideration of these issues as part of the FWA reviews in 2012 and 2014. Therefore, the ALRC recommends that in the course of the 2012 and 2014 reviews of modern awards by FWA, the ways in which family violence may be incorporated into modern awards should be considered.
Recommendation 16–6 In the course of the 2012 review of modern awards by Fair Work Australia, the ways in which family violence terms may be incorporated into awards, consistent with the modern award objectives should be considered.
Recommendation 16–7 In the course of the first four-yearly review of modern awards by Fair Work Australia, beginning in 2014, the inclusion of a model family violence term should be considered.
 Beginning in 2008, the Australian Industrial Relations Commission, and then its successor FWA, conducted an award modernisation process which reviewed and rationalised existing awards to create streamlined ‘modern awards’. The award modernisation process was completed by the end of 2009, with 122 modern awards commencing operation on 1 January 2010. FWA continues the modernisation process in relation to enterprise instruments and certain former state awards preserved by the national system. See Fair Work Australia, About Award Modernisation <www.fwa.gov.au/index.cfm> at 8 November 2011; A Stewart and P Alderman, ‘Awards’ in CCH Australia, Australian Master Fair Work Guide (2010) 147.
Fair Work Act 2009 (Cth) s 57.
 Ibid s 47(2).
 The Fair Work Act draws a distinction between where a modern award covers an employee, employer, or organisation (where it is expressed to cover them) and where it applies (if it actually imposes obligations or grants entitlements): Ibid ss 46–48. There is an obligation to comply with a modern award: Fair Work Act 2009 (Cth) s 45.
 Australian Government, Submission to the Fair Work Australia Annual Wage Review 2010, 19 March 2010, [1.38]. See also ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; National Network of Working Women’s Centres, Submission CFV 20.
 ACTU, Submission CFV 39; ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20; Redfern Legal Centre, Submission CFV 15; WEAVE, Submission CFV 14; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.
 See Fair Work Act 2009 (Cth) ch 2, pt 2–3, div 3.
 Australian Human Rights Commission, Submission CFV 48; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; National Network of Working Women’s Centres, Submission CFV 20; WEAVE, Submission CFV 14; Confidential, Submission CFV 13; Women’s Health Victoria, Submission CFV 11.
 This view was supported by a number of stakeholders in consultations and submissions. See, eg, ACTU, Submission CFV 39; ACCI, Submission CFV 19.
Fair Work Act 2009 (Cth) s 139(1)(b).
 The Explanatory Memorandum to the Fair Work Bill states that the provision which allows terms about type of employment to be included in modern awards would allow modern awards to include terms about the facilitation of flexible working arrangements: Explanatory Memorandum, Fair Work Bill 2008 (Cth) .
 Fair Work Act 2009 (Cth) s 139(1)(c).
 Ibid s 139(1)(h).
 Ibid s 144. Note, there are certain requirements under s 144(4).
 ACTU, Submission CFV 39.
NSW Public Health System Nurses’ & Midwives’ (State) Award 2011 (NSW); Crown Employees (Police Officers) Interim Award 2011;Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW);Crown Employees (Independent Pricing and Regulatory Tribunal 2009) Award 2009 (NSW);Crown Employees (Independent Transport Safety and Reliability Regulator) Award 2009 (NSW); Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 (NSW); Crown Employees (Institute Managers in TAFE) Salaries and Conditions Award 2006 (NSW);Crown Employees (NSW TAFE Commission—Administrative and Support Staff Conditions of Employment) Award 2005 (NSW);Crown Employees (Home Care Service of New South Wales—Administrative Staff) Award 2004 (NSW); Casino Control Authority—Casino Inspectors (Transferred from Department of Gaming and Racing) Award 2004 (NSW); Crown Employees (Parliament House Conditions of Employment 2004) Award; Crown Employees (School Administrative and Support Staff) Award (NSW); Crown Employees (Trades Assistants) Award (NSW); Zoological Parks Board of New South Wales Employees (State) Award (NSW);Crown Employees (Roads and Traffic Authority of New South Wales—Salaried Staff) Award (NSW); Independent Commission Against Corruption Award (NSW);Crown Employees (Parliamentary Electorate Officers) Award (NSW); Crown Employees (Tipstaves to Justices) Award (NSW);Livestock Health and Pest Authorities Salaries and Conditions Award (NSW); Crown Employees (NSW Police Special Constables) (Police Band) Award (NSW); Crown Employees (NSW Police Special Constables (Security)) Award (NSW).
Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW).
 ACTU, Submission CFV 39; ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20; Redfern Legal Centre, Submission CFV 15; WEAVE, Submission
CFV 14; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.
 See, eg, ADFVC, Submission CFV 26.
 Fair Work Australia, Consultation, by telephone, 30 September 2011.
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 5, s 6.
 Section 134 of the Fair Work Act contains the modern awards objective that applies to the performance or exercise of FWA’s modern award powers.
 Explanatory Memorandum, Fair Work Bill 2008 (Cth), .
Fair Work Act 2009 (Cth) s 157.