Reference
1.1
On 13 September 2018 the Senate referred the provisions of the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the bill) to the Education and Employment Legislation Committee for inquiry and report by 12 October 2018.
Conduct of the inquiry
1.2
Details of the inquiry were made available on the committee's website. The committee also contacted a number of organisations inviting submissions to the inquiry. Thirty-three submissions were received, as detailed in Appendix 1.
1.3
A public hearing was held in Canberra on 3 October 2018. The witness list is available in Appendix 2.
Background
1.4
The Commonwealth Government is committed to taking action together with state governments to break the cycle of family and domestic violence.
1.5
This bill seeks to implement the Commonwealth Government's commitment to extend a minimum entitlement introduced by the Fair Work Commission (FWC) earlier this year. The FWC, Australia's national, independent workplace relations tribunal, considered family and domestic violence leave as part of its most recent 4 Yearly Review of Modern Awards:
As part of the current 4 Yearly Review of Modern Awards, the Commission considered a claim by the Australian Council of Trade Unions (ACTU) for all modern awards to be varied to include a new entitlement to ten days’ paid family and domestic violence leave.
1.6
The FWC rejected the claim from the ACTU, stating that:
it was ‘not satisfied, at this time, that it is necessary to provide ten days paid family and domestic violence leave to all employees covered by a modern award’ [6] and that ‘The ACTU has not provided a satisfactory explanation as to how it arrived at ten days and the evidence does not support a finding that ten days paid leave is necessary’ [65];
there was little evidence about ‘the extent to which employers informally or formally provide such leave or the extent to which employees access existing entitlements for family and domestic violence leave’ [95]; and
‘the provision of paid leave will increase costs to employers and that given the lack of data, the impact on employers of that increase in costs is difficult to assess. This supports our conclusion that we should take a cautious approach to the introduction of family and domestic violence leave, particularly paid family and domestic violence leave’ [98–99].
1.7
Accordingly, after broad consultation, the FWC confirmed this preliminary view on 26 March 2018, deciding instead that a new entitlement providing five days unpaid family and domestic violence leave would be inserted into 123 modern industry and occupation awards. The decision took effect on 1 August 2018.
1.8
The FWC has indicated that 'it will revisit consideration of the issue of family and domestic violence leave in mid-2021, including whether any changes are needed to the unpaid leave terms and whether provisions should be made for paid family and domestic violence leave.'
1.9
The FWC decision pertains to employees whose terms and conditions are set by modern awards, approximately 2.3 million workers. While many employers have already introduced policies and entitlements to support employees, millions of employees in the national system do not have access to family and domestic violence leave. The bill seeks to address this and, in as far as possible, ensure consistency in entitlements for employees in the national system. If enacted, the bill would extend the new entitlement to up to a further six million workers employed under an enterprise agreement or individual arrangements.
Overview of the bill
1.10
The bill would amend the Fair Work Act 2009 (the Act) to insert a new entitlement in the National Employment Standards (NES) to five days of unpaid family and domestic violence leave if:
an employee is experiencing family and domestic violence; and
the employee needs to do something to deal with the impact of this violence; and
it is impractical for the employee to deal with the impact of family and domestic violence outside ordinary working hours.
1.11
This change recognises that employees experiencing family and domestic violence have to take concrete steps to deal with its impact, and that it is not always possible to do so outside of ordinary hours of work. Reasons for time off from work can include, but are not limited to:
making arrangements for one's own safety and/or the safety of any children;
attending urgent court hearings; and
accessing police services.
1.12
The minimum entitlement to five days unpaid leave proposed by the bill would apply to all national system employees, irrespective of whether the terms and conditions they are employed under are set by a modern award, an enterprise agreement or an individual agreement. As it would be a minimum standard, as with other minimum standards established by the NES, employers would be able to offer conditions which exceed the legislated entitlement.
1.13
The bill defines 'family and domestic violence' as abusive, violent or threatening behaviour by a close relative of an employee which:
seeks to coerce or control the employee; and
causes the employee harm or to be fearful.
1.14
A 'close relative' of the employee is defined as a person who:
is a member of the employee's immediate family; or
is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
1.15
The term 'immediate family' is defined by section 12 of the Act and includes a spouse or de facto partner; a child, parent, grandparent, grandchild or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
1.16
The entitlement introduced by the bill would apply to all types of employees, including part-time and casual employees. It would be available in full at the commencement of each 12 month period, rather than accruing over the year. It would also not accumulate from year to year.
1.17
The new entitlements would not be available to employees seeking to take leave as a perpetrator of family and domestic violence.
Confidentiality
1.18
Information concerning an employee's personal situation and their experience of family and domestic violence is by its nature very sensitive. If mishandled, it can have negative consequences for the employee.
1.19
The bill would require employers to ensure that any information employees have provided relating to the taking of family and domestic violence leave is treated confidentially, as far as it is possible to do so. There would be two exceptions to this requirement for confidentiality:
(1)
when a disclosure of information is required by a law of the Commonwealth, a State or a Territory; or
(2)
where a disclosure is necessary in order to protect the life, health or safety of the employee in question or another person.
Protection of employees
1.20
Contravention of a provision of the NES by an employer may give rise to a civil penalty. Employees who exercise the proposed new workplace right to family and domestic violence leave would be protected from unlawful adverse action under existing general protection provisions of the Act.
Compatibility with human rights
1.21
The explanatory memorandum states that the bill is compatible with the human rights and freedoms recognised in the international instruments listed in section three of the Human Rights (Parliamentary Scrutiny) Act 2011, and advances the protection and enjoyment of human rights.
Financial impact statement
1.22
The explanatory memorandum states that the bill carries no financial impact.
Scrutiny of Bills Committee
1.23
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) considered the bill in its Scrutiny Digest 11 of 2018. No concerns were identified.
Acknowledgement
1.24
The committee thanks stakeholders who contributed to the inquiry process by preparing written submissions and giving evidence at the hearing.
Notes on references
1.25
References to the Hansard are to the Proof Committee Hansard. Page numbers may vary between the Proof Hansard and official transcript.