1.1
Family and Domestic Violence (FDV) leave is available where an employee needs time off work to do something to deal with the impact of family and domestic violence in circumstances where it is impractical to deal with such matters outside the employee’s work hours.
1.2
Currently, the Fair Work Act 2009 (Fair Work Act) provides five days of unpaid FDV leave.
1.3
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (bill) seeks to amend the Fair Work Act to provide 10 days of paid FDV leave in a 12-month period to employees who are experiencing family or domestic violence. The bill includes the following key elements:
the entitlement to paid FDV leave will be available to full-time, part-time and casual employees;
the full entitlement of 10 days will be available upfront, either on commencement of the provisions for existing employees or on commencement of employment for new employees;
employees will access paid FDV leave at their full rate of pay for the hours they would have worked had they not taken the leave; and
the definition of FDV leave is extended to include conduct of a current or former intimate partner of an employee or a member of an employee’s household.
Urgent need for a whole-of-community response to family and domestic violence
1.4
In introducing the bill to the parliament, the Minister for Employment and Workplace Relations, the Hon Tony Burke MP, (minister) noted that rates of family and domestic violence are not declining in Australia and emphasised the need for an ‘urgent, whole-of-community response’ to family and domestic violence.
1.5
The provision of paid FDV leave is a critical element of a broader framework of measures to tackle family and domestic violence in Australia, including measures to achieve long-term cultural change, address discriminatory attitudes and behaviours and ensure supports are in place to help people safely leave abusive situations.
1.6
The minister noted that ‘more than 68 per cent of people experiencing family and domestic violence are in paid work’ and many risk ‘joblessness, financial stress, homelessness and poverty’ when they seek to leave violent situations.
1.7
The bill recognises the critical importance of financial security to a person’s ability to remove themselves and their children from an abusive relationship. Those affected by family and domestic violence are often unable to take steps to leave violent situations without risk of significant financial hardship, including unemployment and homelessness. The provision of paid FDV leave would assist these individuals to ‘remain in work, maintain their financial security and access relevant services’.
Development of FDV leave standards
Implementation of the current entitlement
1.8
Following its four yearly review of modern awards, the Fair Work Commission (FWC) varied 123 industry and occupation-based awards to include an entitlement to five days unpaid FDV leave within a 12-month period effective from 1 August 2018. The entitlement had already become progressively more common in enterprise agreements over the preceding decade.
1.9
The FWC proposed a review of the effectiveness of the family and domestic violence provisions after they had been in operation for three years. Additionally, the FWC proposed that it would revisit the issue of whether provision should be made for paid FDV leave in June 2021.
1.10
On 6 December 2018, the entitlement for five days unpaid FDV leave was included in the National Employment Standards (NES) following the passage of the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018.
FWC review of FDV leave terms in modern awards
1.11
On 12 April 2021, the Australian Council of Trade Unions (ACTU) wrote to the FWC requesting that it urgently commence a review of the unpaid FDV leave entitlement and revisit the need for paid FDV leave. The ACTU noted the increase in incidents of family and domestic violence during the Covid-19 pandemic.
1.12
The FWC commenced the Family and domestic violence leave review 2021 (2021 review) on 30 April 2021.
1.13
In May 2022, the FWC issued a decision supporting a paid FDV leave entitlement and reached a provisional view ‘as to the characteristics of a model FDV term’.
1.14
The FWC subsequently issued a statement proposing that it would not take any further steps in relation to the 2021 review following the introduction of the bill in parliament. It remains open at any time for parties to request that the FWC list the matter for conference.
Overview of the bill
1.15
The bill contains two schedules. Schedule 1 amends the NES contained in Part 2-2 of the Fair Work Act. In particular, Schedule 1 of the bill would amend Subdivision CA of Division 7 of Part 2-2, which provides for the unpaid FDV leave entitlement, to instead provide for the proposed paid leave entitlement.
1.16
Schedule 1 would also insert a new Part 12 into Schedule 1 of the Fair Work Act to address when the entitlement commences for different employees and how the FWC is to resolve inconsistencies between the NES entitlement and any existing enterprise agreement.
1.17
Schedule 2 would ensure that the entitlement to paid FDV leave is extended to non-national system employees, by inserting a new Division 2A of Part 6-3 of the Fair Work Act. These provisions rely on the external affairs power once the International Labour Organisation (ILO) Convention (No. 190) comes into force for Australia.
NES
1.18
Part 2-2 of the Fair Work Act sets out the NES, which are the minimum standards applying to employment and underpin what can be included in modern awards and enterprise agreements. Item 4 of Schedule 1 of the bill would amend section 61(2)(e) in Division 2 of Part 2-2 of the Fair Work Act to replace unpaid FDV leave with paid FDV leave. This amendment would effectively enshrine the entitlement to paid FDV leave in the NES.
Length and type of leave
1.19
Section 106A of subdivision CA of the Fair Work Act details the amount of FDV leave an employee is entitled to and the conditions associated with use of the entitlement (such as how allocated days can be used by employees and how much leave is available in a 12-month period).
1.20
Items 7-13 inclusive of Schedule 1 of the bill make several amendments to this section of the act to replace the former entitlement of five days of unpaid FDV leave with the bill’s proposed 10 days of paid FDV leave.
Definition of ‘domestic violence’
1.21
Section 106B(2) of subdivision CA of the Fair Work Act defines the meaning of family and domestic violence. Item 18 of the bill would expand this definition with the inclusion of the following two additional types of perpetrators of family and domestic violence:
a member of an employee’s household; or
a current or former intimate partner of an employee.
Circumstances when paid FDV leave can be taken
1.22
Section 106B(1)of subdivision CA of the Fair Work Act outlines the circumstances under which an employee is able to take FDV leave. Note 1 in this section contains examples of actions taken by an employee to deal with the impact of family and domestic violence.
1.23
Item 17 of the bill would repeal Note 1 of the Fair Work Act and substitute a new Note 1 which expands the examples to a non-exhaustive list of actions taken by an employee to deal with the impact of family and domestic violence to include:
attendance at counselling;
attending medical appointments; and
meetings with financial and legal professionals.
Payment of FDV leave
1.24
The bill would insert proposed section 106BA after section 106B in the Fair Work Act. Proposed section 106BA would stipulate the manner in which payment will be made to employees who take a period of paid FDV leave. The proposed section would provide that where an employee decides to take paid FDV leave:
employees who are not casual employees will receive their full rate of pay, having the same effect as if the employee had not taken the period of leave; and
casual employees will receive their full rate of pay, having the same effect as if the employee had worked the hours in that period that they were rostered for.
1.25
Additionally, this proposed section would provide that casual employees are still able to take a period of paid FDV leave over a period that does not include rostered hours, but that the employer is not required to pay the employee for leave taken over periods where the employee was not rostered. This provides additional protection from employers taking adverse action.
Paid personal/carer’s leave
1.26
Currently, section 98 of the Fair Work Act details instances where an employee is taken not to be on paid personal/carer’s leave. Item 6 of the bill would repeal the current section 98 and introduce two proposed subsections. Proposed subsection 98(1) would replicate the text in the existing section 98 of the Fair Work Act, and proposed subsection 98(2) would introduce a new provision relating to paid FDV leave:
If an employee takes paid personal/carer’s leave and a period of that leave includes paid FDV leave, then that period of leave is not considered to be paid personal/carer’s leave.
Transitional arrangements and interaction with enterprise agreements
1.27
Item 22 of the bill would add a new section to Schedule 1 of the Fair Work Act, ‘Part 12 – Amendments made by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022’ containing new clauses 51–53.
These provisions relate to commencement of the entitlement of FDV leave and the interaction of the entitlement with existing enterprise agreements.
Commencement of the entitlement to paid FDV leave
1.28
Proposed clause 52 is a transitional application provision that would specify how and when an employee would gain access to the paid FDV leave entitlement, based on whether or not the employee is a small business employee.
Non-small business employees
1.29
Proposed subclauses 52(1) and 52(2) would specify when the amendments made to the Fair Work Act by Schedule 1 of the bill would apply to employees who are not small business employees or casual employees. As per the subclauses, the amendments would apply as follows:
where an employee starts their employment on or after the commencement of Schedule 1 of the bill, the amendments will apply to the employee at the time their employment starts; and
where an employee’s employment started before the commencement of Schedule 1 of the bill, the amendments will apply to the employee from the date of commencement of the schedule and will end on the first anniversary date of the day the employee began employment, as if the period was a
12-month period.
Small business employees
1.30
Proposed subclauses 52(3) and 52(4) specify when the amendments made to the Fair Work Act by Schedule 1 of the bill would apply to employees who are small business employees. The explanatory memorandum states that this clause provides small business employers with ‘additional time to make necessary arrangements to facilitate a new paid leave entitlement’. For the period between 1 February 2023 and 31 July 2023, small business employees will have access to the current NES entitlement of five days unpaid FDV leave. As per the subclauses, the amendments apply as follows:
where an employee starts their employment with a small business on or after 1 August 2023, the amendments will apply to the employee at the time their employment starts; and
where an employee starts employment with a small business prior to 1 August 2023, the amendments will apply to the employee from 1 August 2023 and will end on the first anniversary date of the day the employee began employment, as if the period was a 12-month period.
Casual employees
1.31
Proposed subclause 52(5) would specify when the amendments made by Schedule 1 of the bill apply to employees who are casual employees, or who have been employed for a specified period of time or for a specified task. As per the subclause, the time at which the employee commenced employment with the employer is taken to be the start of employment date for the employee.
Pre-commencement enterprise agreements
1.32
Proposed clause 53 would provide a mechanism by which employees who are parties to an enterprise agreement that pre-dates the commencement of the bill can ‘resolve any uncertainty about the interaction between the agreement and the entitlement to paid [FDV] leave’.
1.33
Proposed subclause 53(3) of the bill would stipulate that where a variation of a pre-commencement enterprise agreement occurs, the new agreement will operate from the date specified in the FWC’s determination, which may pre-date the date the determination is made. Although this provision could enable a determination to have retrospective operation, the substantive legal rights of the parties would not be affected, as a determination that ensures an enterprise agreement’s consistency with the new entitlement could not take effect before the commencement of Schedule 1.
Amendments relating to ILO Convention (No. 190)
1.34
Schedule 2 of the bill will not commence until ILO Convention (No. 190) is ratified by Australia and comes into force in Australia. If the convention does not come into force in Australia on 1 February 2025 or prior, the schedule will not commence at all. This schedule of the bill would extend the NES entitlement of paid FDV leave to employees who are not national system employees.
Financial Impact Statement
1.35
The explanatory memorandum states that the bill has no financial impact.
Consideration by other parliamentary committees
1.36
When examining a bill, the committee considers any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights. At the time of presenting this report neither committee had reported on the bill.
1.37
The committee notes that the statement of compatibility included with the explanatory memorandum states that the bill is compatible with human rights because it advances the protection and enjoyment of human rights, and that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conduct of the committee’s inquiry
Referral
1.38
The Senate referred the provisions of the bill to the Senate Education and Employment Legislation Committee (committee) on 4 August 2022, for inquiry and report by 1 September 2022.
1.39
The bill was referred to the Senate following a recommendation of the Senate Standing Committee for Selection of Bills (Selection of Bills Committee). The report of the Selection of Bills Committee suggested that the bill be referred due to the complex nature of the legislation and its potential to have an impact on business.
Evidence
1.40
Details of the inquiry were made available on the committee’s website. The committee also wrote to a number of stakeholders inviting them to make a submission to the inquiry. The committee requested that submissions be received by 19 August 2022. The committee received 83 submissions, which are listed in Appendix 1. The committee received 19 form letters expressing support for the bill. The committee published an example of the form letter on the inquiry website.
1.41
A public hearing for this inquiry was held in Canberra on 22 August 2022. A list of witnesses who appeared at the hearing can be found in Appendix 2.
Acknowledgement
1.42
The committee thanks all organisations and individuals who contributed to the inquiry process by preparing written submissions and giving evidence at the hearing.