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Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022



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ISSN 1328-8091

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BILLS DIGEST NO. 006, 2022-23 4 AUGUST 2022

Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 Howard Maclean and Juli Tomaras Law and Bills Digest Section Harriet Spinks Social Policy Section

Key points

• The Fair Work Act 2009 currently provides 5 days of unpaid family and domestic violence leave (FDV leave) for employees covered by the national system.

• The Bill will amend this entitlement, so that these employees will be entitled to 10 days paid FDV leave.

• The Bill will also extend the entitlement to casuals and provide that employees are to be paid FDV leave at their full rate of pay, rather than their base rate of pay.

• The Bill expands the definition of family and domestic violence, to cover actions by former intimate partners and unrelated household members.

• The entitlement has a delayed commencement for employees of small businesses.

• If the International Labour Organization Convention 190—Violence and Harassment Convention 2019 comes into force for Australia on or before 1 February 2025, the FDV leave entitlement will be extended to all employees in Australia, relying on the external affairs power in section 51(xxix) of the Constitution.

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Contents

The Bills Digest at a glance .............................................. 4

Purpose of the Bill ........................................................... 5

Structure of the Bill ......................................................... 5

Background ..................................................................... 5

Domestic violence leave: policy background and issues ........................................................................... 6

Domestic violence leave provisions in other countries ...................................................................... 7

Current Australian provisions ..................................... 7

May 2022 decision by the Fair Work Commission ............................................................... 9

Committee consideration ................................................ 9

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 9

Policy position of non-government parties/independents.................................................... 10

Liberal Party of Australia ......................................... 10

Australian Greens .................................................... 10

Dr Sophie Scamps MP ............................................. 10

Position of major interest groups................................... 10

Unions ..................................................................... 10

Employer Groups ..................................................... 10

States and Territories .............................................. 11

Financial implications .................................................... 11

Statement of Compatibility with Human Rights.............. 11

Parliamentary Joint Committee on Human Rights ... 12 Key issues and provisions .............................................. 12

Schedule 1- The paid family and domestic violence leave entitlement ........................................ 12

Key Issue - Expansion of the scope of family and domestic violence ................................................... 12

Issue - Further examples of the scope of activities for which FDV leave may be taken .......... 14 Proposed section 106BA - Payment for FDV Leave ....................................................................... 14

Key Issue - Accrual of FDV leave ............................. 15

Differences between the Bill and the FWC Provisional Decision ................................................ 17

Stakeholder view ..................................................... 17

Table 1: The chief distinctions between the two models ..................................................................... 17

Staggered commencement of the Bill....................... 17

Constitutional basis of this Bill .................................. 18

Issue: the ‘victims of crime’ exclusion clauses ........ 19

Date introduced: 28 July 2022

House: House of Representatives

Portfolio: Employment and Workplace Relations

Commencement: Sections 1 to 3 on Royal Assent. Schedule 1 commences on 1 February 2023. Schedule 2 commences on the day ILO Convention 190 comes into force for Australia. However, Schedule 2 provisions do not come into force at all if the Convention does not come into force on or before 1 February 2025.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at 4 August 2022.

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Schedule 2- Treaty Implementation Power .............. 20 Compliance with ILO Convention 190—Violence and Harassment Convention 2019 .......................... 22

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The Bills Digest at a glance • Purpose: This Bill will amend the existing 5 days of unpaid family and domestic violence leave (FDV leave) entitlement in the National Employment Standards (NES) in the Fair Work Act 2009 to replace it with 10 days of paid leave accessible to all employees (including casual

employees). The Bill will also expand the scope of the leave and provide that the full 10 days is available from the commencement of employment. 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 their work hours.

• Structure: The Bill is divided into two Schedules. Schedule 1 concerns the actual amendments to the entitlement within the NES and makes provision for their commencement for national system employees.1 Schedule 2 concerns the commencement of the entitlement for non-national system employees.

• Background: The previous Government legislated a 5-day unpaid FDV leave NES entitlement in 2018. Unions, particularly the Australian Services Union, have been campaigning for a paid FDV leave entitlement for more than a decade. The Fair Work Commission (FWC) made a provisional decision on 16 May 2022 to create a paid FDV leave entitlement in the modern award system. The paid FDV leave entitlement proposed by this Bill is stronger and applies more broadly.

• Policy position of non-government parties/Independents: The Australian Greens have stated their support for the Bill. Dr Sophie Scamps MP has made positive comments on the Bill.

• Position of major interest groups: Unions have welcomed the Bill. The Ai Group has criticised the proposed changes as they diverge from the model proposed in the FWC’s provisional decision.

• Schedule 1 of the Bill provides for amendments to the Fair Work Act:

- Key Issue: The Bill expands the scope of persons whose behaviour qualifies as ‘family and domestic violence’ that FDV leave can be taken in response to, to include current and former intimate partners and unrelated household members. - Key issue: Paid FDV leave is available to casuals, and is calculated at the full rate of pay,

rather than base rate of pay. - Key Issue: The full 10 days of FDV leave is available from the moment employment begins, and then resets on the anniversary of commencement of employment. It does not progressively accrue. • Staggered Commencement: The FDV leave entitlement commences on 1 February 2023 for

full-time, part-time and casual employees of national system employers that are not small businesses; 1 August 2023 for employees of small business employers in the national system; and from the ratification of ILO Convention 190 for non-national system employees.2

• Evidentiary requirements: The evidentiary provisions in the previous unpaid family and domestic violence leave scheme will remain unchanged, allowing employers to require affected employees to provide evidence that the leave is taken for family and domestic violence reasons.3

• Key Issue: Schedule 2 extends the FDV leave entitlement to all Australian employees as legislation implementing Australia’s International legal obligations under International Labour Organization Convention (ILO) Convention 190.

1. Section 13 of the Fair Work Act 2009 provides that a national system employee is an individual who is employed, or usually employed by a national system employer (as defined in section 14) except on a vocational placement. The definition of a national system employee is extended by sections 30C, 30D, 30M and 30N to cover employers in referring states (discussed later in this Digest).

2. Section 23 of the Fair Work Act 2009 defines a small business employer as one with fewer than 15 employees. 3. The evidence provided would need to satisfy a reasonable person that the employee has met the eligibility requirements— section 107 of the Fair Work Act.

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Purpose of the Bill The Bill amends the Fair Work Act 2009 to:

• provide for ten days of paid family and domestic violence leave within the National Employment Standards (NES), replacing the existing five days of unpaid family and domestic violence leave.4

• extend the current definition of ‘family and domestic violence’ to include conduct of ‘a member of an employee’s household, or a current or former intimate partner of an employee’, and provide further examples of activities that FDV leave may be taken to facilitate.5

The Bill, however, does not propose to do so for all employees simultaneously. Schedule 1 of the Bill would extend the entitlement first to national system employees who are covered by the Fair Work Act on 1 February 2023, and to small business employees covered by the national system on 1 August 2023.

Schedule 2 of the Bill would extend the entitlement to non-national system employees, relying on Australia’s anticipated ratification of the ILO Convention 190 to provide a constitutional basis to do so as an implementation of Australia’s international legal obligations under the external affairs power (section 51(xxix)) of the Commonwealth Constitution.

Structure of the Bill The Bill consists of two schedules:

Schedule 1 principally amends the National Employment Standards (Part 2-2) of the Fair Work Act, particularly Subdivision CA of Division 7 of that Part, which currently concerns the unpaid family and domestic leave entitlement, to instead provide for the proposed paid entitlement.

Schedule 1 also inserts a new Part 12 into Schedule 1 of the Fair Work Act, which concerns when the entitlement commences for different workers, and how the FWC is to resolve inconsistencies between the NES entitlement and any existing enterprise agreement.

Schedule 2 principally amends Part 6-3 of the Fair Work Act, which concerns the extension of National Employment Standards to non-national system employees, by inserting a new Division 2A of the Part, extending the paid family domestic leave entitlement legislated by Schedule 1 to all employees. Schedule 2 also makes related consequential and technical amendments.

Background In this second reading speech Tony Burke MP, Minister for Employment and Workplace Relations said:

More than 68 per cent of people experiencing family and domestic violence are in paid work. However, many can't leave violent situations without risking joblessness, financial stress, homelessness and poverty, leaving workers having to choose between their safety and their livelihood.

4. The Fair Work Act 2009is one of the primary pieces of legislation that govern the employment relationship in most of Australia’s private workplaces. It is the foundation of all minimum standards and regulations for employment that fall within the national workplace system. The NES are minimum standards and are mandatory for employees covered by the national workplace relations system regardless of industry, business size or unique circumstance. The purpose of these standards is to protect minimum entitlements of employees working in Australia under the national system regardless of their award, registered agreement or employment contract. The NES, which are set out in Part 2-2 of the Fair Work Act, cover matters including: leave entitlement, paid parental leave, right to request flexible arrangements etc. 5. The Fair Work Act currently defines ‘family and domestic violence’ to mean ‘violent, threatening or other abusive behaviour

by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful’: subsection 106B(2).

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[…]

This bill sends a clear message that family and domestic violence is not just a criminal justice or social issue, but an economic and a workplace issue.6

Domestic violence leave: policy background and issues Family and domestic violence (FDV) leave is generally understood to be leave that an employee who is a victim of FDV may access in order to respond to the impact of that violence, where it is impractical to do so outside ordinary work hours. Examples of the kinds of reasons an employee may take FDV leave include: to attend police interviews or court hearings; to make arrangements for their safety or the safety of a close family member (including relocating); and to attend appointments with counselling, medical or legal providers.

FDV leave is a relatively recent concept in Australia’s industrial relations framework. The first paid FDV leave entitlements were included in enterprise agreements lodged with the Fair Work Commission (FWC) in 2010.7 This reflects the fact that historically FDV has been conceptualised as

a private matter, and not a workplace issue. However there has been increasing recognition over the last decade or so that workplace support offered to employees experiencing FDV is important for their physical, mental and economic wellbeing. As noted by researchers from the University of New South Wales:

The effects of DFV [domestic and family violence] on work lead to career interruptions, lower paid work and under-employment, and economic insecurity is a barrier to women leaving violence; conversely, secure employment is an enabler for women to leave. The clauses [in enterprise agreements] … have the potential to enhance the safety and economic security of victims by allowing them to maintain employment. Ensuring financial security in these ways should be conceptualised as contributing to women's autonomy and ongoing safety.8

Cost and impact of FDV in the workplace

In 2011 researchers from the Centre for Gender Related Violence Studies at the University of New South Wales, funded by the Commonwealth Department of Education, Employment and Workplace Relations, conducted a national survey of union members investigating the impact of FDV in the workplace. Around 30% of respondents indicated that they had experienced FDV, and around half of those reported that the violence impacted their ability to attend work.9

As well as being important for the economic and personal security of victims, research indicates that workplace responses to FDV have the potential to benefit the broader Australian economy. In 2016 KPMG estimated the total annual cost to the Australian economy of violence against women and their children at $22 billion in 2015-16.10 Of this:

• $860 million was attributed to ‘absenteeism from paid and unpaid work and the inability to perform household tasks and voluntary work’

• $1.6 billion was attributed to costs associated with transfer payments including loss of revenue from income tax and additional social security payments.11

6. Tony Burke, MP, Second Reading Speech: Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, House of Representatives, Debates, 27 July 2022, 1-2. 7. M. Baird, L. McFerran and I. Wright, ‘An equality bargaining breakthrough: paid domestic violence leave’, Journal of Industrial Relations, 56, no. 2, (2014), 190. 8. K. Valentine and J. Breckenridge, ‘Responses to family and domestic violence: supporting women?’, Griffith Law Review, 25,

no. 1 (2016), pp. 41-2. 9. L. McFerran, Safe at home, safe at work? National domestic violence and the workplace survey 2011, (Sydney: Australian Domestic and Family Violence Clearinghouse, October 2011). 10. KPMG Australia, The cost of violence against women and their children in Australia: final report , report prepared for the

Department of Social Services, (Australia: KPMG, 2016). 11. KPMG, The cost of violence against women, pp. 5-6.

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Measures that assist people experiencing FDV to remain employed, and remain productive at work, therefore benefit not only the individual concerned but also the Australian economy more broadly.

Domestic violence leave provisions in other countries While FDV leave is increasingly being discussed and advocated in the context of government and workplace responses to FDV, and many workplaces are introducing these entitlements into their agreements, only a handful of countries around the world have so far actually legislated for the provision of FDV leave.

The first to do so was the Philippines in 2004. The Anti-Violence Against Women and Their Children Act of 2004 provides for victims of FDV to take up to 10 days of paid FDV leave.12

In 2018 New Zealand legislated an entitlement for all employees to take up to 10 days of paid FDV leave.13 The legislation also provides an entitlement for employees affected by FDV to request a short-term variation to their working hours and prohibits employment discrimination on the basis

of being a victim of FDV.

Canada offers 10 days of FDV leave per year for federally regulated employees, of which the first 5 days will be paid if the employee has 3 months of consecutive employment with the same employer.14 Several Canadian provinces have also independently legislated for FDV Leave. For example, workers in Manitoba are entitled to 2 allotments of FDV leave—up to 10 days and up to 15 weeks—annually if they have been employed by the employer for at least 90 days, and they (or a dependent child or protected adult residing with the employee) are the victim of FDV.15 Five of these days may be paid. Similarly, in Ontario, employees who have been employed by their employer for at least 13 weeks are entitled to two separate FDV Leave allotments—up to 10 days, and up to 15 weeks—if they or their child have experienced FDV or sexual violence.16 The first 5 days of leave are paid, and the remaining entitlement is unpaid.

Some US states have also legislated for FDV leave. For example, all employees in Washington State are entitled to FDV leave, with no limit placed on the amount of leave that may be taken— employees may take ‘reasonable amounts of unpaid leave’.17 Domestic violence leave is not yet legislated at the national level in the US, but the Biden administration has stated that it intends to address this, as part of its Build Back Better plan.18

Current Australian provisions In 2018 the Australian Parliament passed the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018. This provides for 5 days of unpaid FDV le ave to be included in the National Employment Standards (NES). This leave is available to all employees, including part-time and casual employees, from the day they commence work with an employer. The entitlement renews annually, but unused leave does not carry over to the following year.

While the provision of any form of FDV leave was welcomed by the Australian Greens and the Australian Labor Party (ALP), both argued at the time that 5 days of unpaid leave was insufficient. The ALP branded the Bill ‘too little, too late’, and called on the Morrison Government to ‘adopt

12. Anti-Violence Against Women and Their Children Act of 2004 (Philippines), section 43. 13. Domestic Violence—Victims’ Protection Act 2018 (NZ). 14. Canada Labour Code (Canada), section 206.7. 15. Government of Manitoba, ‘Domestic Violence Leave’, factsheet, Government of Manitoba, 4 November 2019. 16. Government of Ontario, ‘Your guide to the Employment Standards Act: domestic or sexual violence leave’, Ontario Ministry of

Labour website, updated 21 July 2022. 17. Washington State Department of Labor and Industries (L&I), ‘Domestic Violence Leave’, L&I website, n.d. 18. ‘Fact Sheet: How the Build Back Better Framework Will Support Women’s Employment and Strengthen Family Economic

Security’, The White House w ebsite, 15 July 2021.

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Labor’s commitment to 10 days’ paid domestic and family violence leave in the National Employment Standards. Nothing less will do.’19 The ALP has maintained a commitment to providing 10 days of paid FDV leave, with the commitment articulated in its 2021 National Platform20 and its 2022 election policy on Women’s Safety.21 In 2020, from Opposition, it introduced a private member’s Bill which would have provided for 10 days of paid FDV leave.22

The Australian Greens also advocate for an entitlement to 10 days of paid FDV leave, having introduced its own private member’s Bill in February 2018.23

Stakeholders in the FDV sector, along with unions, had been advocating for paid FDV leave prior to the introduction of the 2018 Bill. Submissions from these organisations on the 2018 Bill pointed to financial insecurity being a significant barrier to people attempting to leave a violent relationship and argued that failing to provide paid FDV leave adds to this economic insecurity by forcing victims of FDV to forgo wages in order to pursue, for example, counselling, a legal separation or a court case.24

In December 2021 researchers from Monash University published the results of research exploring employees’ access to family violence leave and other workplace supports (including through specific arrangements offered by private sector employers). The report concluded that:

When set alongside emerging best practice recommendations in Australia and internationally, the expertise and experience of victim-survivors identifies the need for workplaces to provide at minimum 14 days paid family violence leave, and ideally access to unlimited leave. 25

Paid leave had also been recommended by the Australian Law Reform Commission (ALRC) in a 2011 report into Family Violence and Commonwealth Laws, which examined in detail the interaction between FDV, employment law, the Fair Work Act and the NES.

There are strong arguments in favour of the need for paid family violence leave, or a combination of paid and unpaid leave, to avoid provision of a ‘hollow’ entitlement, risk further disadvantaging victims of family violence, or to fail to achieve the objects underlying its introduction… In light of the focus of this part of the Report on ensuring the economic security and independence of employees experiencing family violence, and stakeholder concerns about the possible compounding effect unpaid family violence leave may have, the ALRC has formed the view that any entitlement to family violence leave should provide for paid leave and, possibly, also additional unpaid leave. 26 [emphasis added]

In 2016 the Centre for Future Work at the Australia Institute conducted research into the economic impacts of introducing an entitlement to ten days of paid FDV leave. It used data on the incidence of FDV and its impact on work attendance, along with evidence from employers with existing FDV leave provisions in place, to model the likely utilisation of FDV leave. The analysis concluded that around 1.5 per cent of female and 0.3 per cent of male employees would be likely to access FDV leave each year.27 It further estimated that, assuming an entitlement of ten days of

19. B. O’Connor (Shadow Minister for Employment and Workplace Relations) and L. Burney (Shadow Minister for Preventing Family Violence), ‘Too little, too late: more action on domestic violence leave needed’, joint media release, 13 September 2018. 20. ALP National Platform 2021 as adopted at the 2021 Special Platform Conference, p. 25. 21. Australian Labor Party (ALP), ‘Women’s Safety’, ALP website, n.d. 22. Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020. 23. Australian Parliament, Fair Work Amendment (Improving the National Employment Standards) Bill 2018, homepage. 24. See discussion of this issue in J. Murphy and H. Spinks, ‘Fair Work Amendment (Family and Domestic Violence Leave) Bill

2018’, Bills Digest, pp. 19-20. 25. K. Fitz-Gibbon, N. Pfitzner, E. McNicol and H. Rupanagudi, Safe, thriving and secure: Family violence leave and workplace supports in Australia, (V ictoria: Monash University: December 2021), p. 5. 26. Australian Law Reform Commission (ALRC), Family Violence and Commonwealth Laws— improving legal frameworks: final

report, A LRC report, 117, (Sydney: ALRC, November 2011), 425. 27. J. Stanford, Economic aspects of paid domestic violence leave provisions, Briefing paper, (Canberra: The Australia Institute, Centre for Future Work, December 2016), p. 3.

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paid FDV leave, the cost to employers of wage pay outs would be modest, and likely to be almost completely offset by benefits such as improved productivity and decreased turnover.28

May 2022 decision by the Fair Work Commission The FWC commenced a review of the family and domestic violence leave entitlements in modern awards in April 2021, to consider:

• whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave

• the adequacy of the unpaid family and domestic violence leave entitlement and

• whether provisions should be made for paid family and domestic violence leave.29

The findings of the Review were handed down in a decision on 16 May 2022. It made a provisional assessment that ‘the insertion into modern awards of the provisional model term for 10 days paid FDV leave is necessary to achieve the modern awards objective’.30 The FWC formed the

provisional view that 10 days of paid FDV leave should:

• be available to full -time and, on a pro-rata basis, part-time employees

• be paid at the employee’s ‘base rate of pay’ as defined in the Fair Work Act

• accrue progressively in the same way personal or carer’s leave accrues under the NES, and accumulate from year to year, but should be subject to a ‘cap’ whereby the total accrual does not exceed 10 days at any given time.31

It rejected a claim from the Australian Council of Trade Unions (ACTU) that an additional 5 days of unpaid leave should be available on top of 10 days paid leave and formed a provisional view that FDV leave should not apply to casual employees.32

On 16 June 2022 the FWC published amended directions in the FDV leave review proceedings, stating that the parties were to formulate a draft model FDV leave term based on its provisional views, to be filed by 1 July 2022.33 However, in correspondence to the FWC dated 28 June 2022, Minister for Employment and Workplace Relations, Tony Burke, advised that the Government expected that ‘legislation to implement this commitment would be introduced early in the sitting period beginning on 26 July 2022.’34 Consequently, on 30 June 2022, the FWC vacated its directions in the FDV leave review matter, and listed the matter for mention in early August 2022 to provide an opportunity for parties to the matter to state their view as to whether further action is necessary.35

Committee consideration At the time of writing, the Bill has not been referred to a committee for inquiry.

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Committee for the Scrutiny of Bills has not considered this legislation.

28. Stanford, Economic Aspects , p. 3. 29. ‘Family and domestic violence leave review 2021’, Fair Work Commission (FWC) website. 30. Fair Work Commission (FWC), Decision: Family and domestic violence lave review 2021, p. 231. 31. FWC, Decision: Family and domestic violence leave review 2021, pp. 23-24. 32. FWC, Decision: Family and domestic violence leave review 2021, p. 210. 33. FWC, ‘Statement’, 16 June 2022. 34. Tony Burke MP (Minister for Employment and Workplace Relations), ‘Correspondence’, 28 June 2022. 35. FWC, ‘Statement’, 30 June 2022.

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Policy position of non-government parties/independents

Liberal Party of Australia At the time of writing, the Liberal Party of Australia has not stated a position on the Bill. However Liberal Party members James Stevens and Jenny Ware spoke positively of the Bill during a private member’s motion on 1 August 2022.36 Mr Stevens noted:

Equally, we had a decision of the Fair Work Commission in May of this year to extend that, to evolve that further, to bring in place now, instead of unpaid leave for five days, paid leave for 10 days. My understanding of the bill that the government has introduced will do much like what we did back in 2018 and take a Fair Work Commission decision and ensure that it applies to everyone, not just those that the Fair Work Commission is in a position to provide that entitlement to. When the bill comes before the House again, and once we've had the opportunity to do appropriate consultation and understand all the detail, I look forward to us engaging in that legislative reform. 37

Australian Greens The Australian Greens welcomed the introduction of the Bill, with Greens Leader in the Senate and spokesperson for Women, Senator Larissa Waters, stating:

The Greens have been calling for paid domestic and family violence leave for many years, echoing calls from the women’s safety sector and unions. We are pleased to see progress on this important issue.38

The Greens further indicated support of the inclusion of casuals within the FDV Leave entitlement. The Greens have not foreshadowed any concerns with the drafting of the Bill, or indicated potential amendments.

Dr Sophie Scamps MP Dr Scamps, Independent member for Mackellar, tweeted on 28 July 2022:

It really was an honour to be present at parliament for this announcement. The people in the gallery & many many more beyond have fought tirelessly for decades for the introduction of adequate measures to address the problem of DV across Australia39

Position of major interest groups

Unions The Australian Council of Trade Unions (ACTU) ‘celebrated’ the introduction of the Bill, noting more than a decade of union campaigning to introduce paid FDV leave into law. The Australian Services Union (ASU), has been prominently involved in that union campaigning, through the ‘we won’t wait campaign’, and has also made various statements in support of the introduction of the Bill.40

Employer Groups The Ai Group recognised the ‘importance of taking action to address the scourge of domestic violence in our community’, but considers that the Bill ‘reflects a significant departure from the approach proposed by a Full Bench of the Fair Work Commission in its recent decision proposing the introduction of a new paid leave entitlement’.

36. James Stevens and Jenny Ware, Motion: Domestic and Family Violence, House of Representatives, Debates, 1 August 2022, pp. 16-17. 37. James Stevens, Motion: Domestic and Family Violence, House of Representatives, Debates, 1 August 2022, p. 16. 38. Senator Larissa Waters ‘Greens welcome paid DV leave, call for more action on housing’ 28 July 2022. 39. Dr Sophie Scamps, (@SophieScamps), tweet, 28 July 2022, https://twitter.com/SophieScamps/status/1552608999131848704. 40. Australian Services Union ‘We won’t wait’, media release, n.d.

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Ai Group noted:

In the lengthy Commission proceedings, employer parties had opposed the ACTU’s claim for such an entitlement, citing concerns over the cost to employers, particularly small employers. Ai Group had called for a publicly funded scheme to be introduced instead.

Ultimately, the Commission did not grant the ACTU’s claim but instead proposed a different and much more balanced and workable paid domestic violence leave scheme.

The proposed legislation departs from the carefully considered approach proposed by the Commission in various ways that undermine its workability and reasonableness. It instead adopts elements similar to the ACTU proposal that the Commission had rejected.

The Bill should be amended to reflect the sensible and considered views of the Commission. 41

Ai group further criticised the proposed extension of the FDV leave entitlement to casuals, the automatic accrual of 10 days of FDV Leave from the commencement of employment, and the use of full rate of pay rather than base rate of pay.

This Bill will be much more costly for employers than the approach proposed by the Commission and there are significant questions about how the rate of pay that must be provided to an employee could even be calculated in practice. 42

The Business Council of Australia noted the issue of domestic and family violence and stated that it looks ‘forward to working with government to implement their plan to include 10 days of domestic and family violence leave in the National Employment Standards.’43

States and Territories Victoria and the Australian Capital Territory (ACT) have both called on the Federal Government to legislate at least ten days of paid FDV leave, noting their own commitment to 20 days of such leave for relevant state and territory public servants.44 The Victorian Government has noted:

The Victorian Government has ensured all 297,000 Victorian public sector employees have access to 20 days paid family violence leave, and has also introduced an entitlement to unpaid family violence leave for casual employees. This entitlement is now mandatory in all prospective Victorian public sector enterprise agreements.

The Victorian Government has encouraged the Commonwealth Government to amend the National Employment Standards in recognition of the importance of an entitlement to family violence leave.. 45

Financial implications The Explanatory Memorandum states that the Bill has no financial impact.46

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised

41. AI Group, ‘Domestic Violence Bill a significant departure from FWC proposal’ media release, 28 July 2022. 42. AI Group ‘Domestic Violence Bill a significant departure from FWC proposal’, media release, 28 July 2022. 43. Business Council of Australia ‘Business share best practice advice on domestic violence’, media release, 28 July 2022. 44. Yvette Berry MLA (Deputy Chief Minister, ACT) ‘We won’t Wait’ for paid domestic and family violence leave’, media release,

2 December 2021. 45. ‘Include an entitlement to paid family violence leave for employees’, Victorian Government, 17 May 2020. 46. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 2.

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or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.47

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights has not considered this Bill.

Key issues and provisions

Schedule 1- The paid family and domestic violence leave entitlement Part 2-2 of the Fair Work Act 2009 sets out the National Employment Standards (NES). Subdivision CA of Division 7 of Part 2-2 currently provides for five days of unpaid family and domestic violence leave within the NES.

Schedule 1 makes amendments to this subdivision to replace the 5 days of unpaid family and domestic violence leave with the 10 days of paid family violence leave. Most of these items simply replace references to the 5 days of unpaid entitlement with the paid entitlement, however there are four notable changes:

• Item 17 amends the note to subsection 106B(1), which provides examples of the circumstances in which the leave may be taken.

• Item 18 expands the definition of family and domestic violence.

• Item 19 inserts new section 106BA, which concerns how family and domestic violence leave is to be paid. Unlike other forms of paid leave in the NES, it will be paid at the full rate of pay rather than base rate of pay and is available to casual employees.

• proposed clause 52 of Schedule 1 to the Fair Work Act (which sets out application, saving and transitional provisions relating to amendments of the Act) at item 22 provides that the full 10 days of FDV leave is available from the commencement of employment, resetting on the anniversary of employment. It does not progressively accrue like paid personal/carer’s leave does.

Key Issue - Expansion of the scope of family and domestic violence Section 106B of the Fair Work Act concerns the circumstances under which family and domestic violence may be taken. Subsections 106B(2) and (3) currently provide:

(2) Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee that:

(a) seeks to coerce or control the employee and

(b) causes the employee harm or to be fearful.

(3) A close relative of the employee is a person who:

(a) is a member of the employee’s immediate family or

(b) is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

‘Immediate family’ is defined under section 12 of the Act:

immediate family of a national system employee means:

47. The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill.

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(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee or

(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

Item 18 of the Bill amends subsection 106B(2) to expand the definition of family and domestic violence, so that it will provide:

(2) Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that:

(a) seeks to coerce or control the employee; and

(b) causes the employee harm or to be fearful.

[new language in bold]

The Explanatory Memorandum relevantly states that this amendment is designed to reflect the increasingly diverse range of non-traditional living situations, and will ensure an employee is able to access FDV leave in circumstances involving:

…an intimate partner who does not meet the definition of de facto partner under the Act, for example, because the employee does not live with the person on a genuine domestic basis. An intimate partner relationship would include, for example, an ongoing sexual relationship, regardless of whether the employee is co-habiting with the violent person.

A member of an employee’s household would include any person living in the same residence as the employee, such as extended family members or a housemate the employee is not related to.48

This broadens the scope of persons whose conduct can constitute family and domestic violence on which leave can engage. The inclusion of ‘member of an employee’s household’ also broadens the definition beyond the definition of family violence in most State and Territory criminal laws which provide for the making of family violence orders, which does not apply to household members who are not relatives or current or former domestic partners, spouses or intimate partners. 49

Additionally, it is also different from the Family Law Act 1975 definition which provides:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. 50

The Family Law Act does not require that the person intended to coerce or control the family member, or cause them to be fearful: family violence occurs under the Family Law Act definition where the relevant behaviour either coerces or controls a family member or causes them to be fearful - it does not need to do both. In contrast subsection 106B(2) imposes a requirement that the violent, threatening or abusive conduct was intended (that is, it sought to) coerce and control

48. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, pp. 7-8. 49. In NSW and the NT, ‘domestic relation’ includes an unrelated household member, see section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and paragraph 9(d) of the Domestic and Family Violence Act 2007 (NT). In other jurisdictions this is not the case, see: Family Violence Act 2016 (ACT), Family Violence Protection Act 2008 (VIC), Family

Violence Act 2004 (TAS), Domestic and Family Violence Protection Act 2012 (QLD), Intervention Orders (Prevention of Abuse) Act 2009 (SA) subsection 8(8), Restraining Orders Act 1997 (WA). 50. Family Law Act 1975 (Cth), section 4AB.

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the person and the conduct also actually caused harm to the person, or caused the person to be fearful. 51

This may lead to situations where:

• an employee can take FDV leave under this Bill but cannot apply for a FVO under State/Territory law in relation to the same behaviour, as the perpetrator is an unrelated housemate in a share house or

• an employee cannot take FDV leave under this Bill, but the behaviour does qualify as family violence under the Family Law Act, because the perpetrator did not ‘seek to coerce or control’ the employee but did cause the employee ‘to be fearful’.

Issue - Further examples of the scope of activities for which FDV leave may be taken Item 17 amends the note to subsection 106B(1), which provides examples of actions that an employee may take FDV leave to carry out. Subsection 15AD of the Acts Interpretation Act 1901 provides that if an Act includes an example of the operation of a provision:

• the example is not exhaustive and

• the example may extend the operation of the provision.

An example, therefore should not be construed to limit the terms of the actual provision.52 Accordingly, the note setting out examples of actions in relation to which FDV leave may be taken should not be interpreted as limiting the ability of an employee to take FDV leave to do something to deal with the impact of the family and domestic violence, which is impractical to do outside their working hours.

Compared to the old note, the new note:

• clarifies that an employee can use FDV leave to attend court hearings, removing the specification in the current example that the hearing be ‘urgent’. The Law Council of Australia and Victorian Hospitals Industrial Association had previously argued for the urgency requirement to be removed in relation to the 2018 Bill53 and

• explicitly states that attending counselling, and attending appointments with medical, financial or legal professionals are examples of actions in relation to which FDV leave may be taken.

Proposed section 106BA - Payment for FDV Leave Item 19 proposes to insert new section 106BA, which provides for the payment of family and domestic violence leave.

There are two major differences between this section and analogous sections in relation to other forms of paid leave in the NES:

• it makes provision for payment of the entitlement to casual employees, the first paid leave entitlement for casuals in the NES

• it makes provision for the payment at the employee’s full rate of pay rather than the base rate of pay for both casual and non-casual employees.54 All other forms of paid leave in the NES make provision for leave paid at base rates only.

51. See Jaan Murphy and Harriet Spinks, ‘Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018’ Bills Digest, 47, 2018-19,(Canberra: Parliamentary Library, 2018), p. 11. 52. Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2), [2016] FCA 62, [293]. 53. LCA, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment

(Family and Domestic Violence Leave) Bill 2018 [Submission no. 31], 27 September 2018, 4; VHIA, Submission to the Senate Education and Employment Legislation Committee, Inquiry into the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, [Submission no. 6], 4. 54. ‘Base rate of pay’ is defined at section 16 of the Fair Work Act 2009.

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The rationale for the use of ‘full rate of pay’ rather than ‘base rate of pay’ for casual employees accessing the entitlement is clear, as the base rate would not include the casual loading that makes up a substantial portion of casual employee pay over a given period.

The Explanatory Memorandum however does not explain in detail why ‘full rate of pay’ was used in relation to non-casual employees, rather than the ‘base rate of pay’ entitlement in relation to all other forms of paid leave, noting only:

The intention is that employees taking paid family and domestic violence leave will receive the same remuneration they would have received had they not taken the leave, as far as possible. Employers would be required to pay employees in relation to a period of paid family and domestic violence leave amounts the employee would otherwise have earned, provided those amounts can be identified and calculated with a reasonable degree of certainty. 55

As ‘full rate of pay’ includes incentive-based payments and bonuses, loadings, monetary allowances, overtime and penalty rates, and any other separately identifiable amount, it is possible that some full-time employees may be entitled to a higher effective rate of pay for periods of FDV leave than they would be if they were on other forms of paid leave.56 This is likely to necessitate that an employer speculate, as to what an employee would have been paid had they worked during the period of leave (that is, including loadings and allowances but also potentially commissions and incentive payments).

This may introduce complexities into the payroll systems of affected employers regarding the different effective level of pay required to be paid on FDV leave compared to other forms of leave.

Key Issue - Accrual of FDV leave The paid leave entitlement proposed by the Bill would not accrue progressively in the same manner as personal leave (with new employees starting with no accrued leave). Instead, every employee would gain a full ten days of paid FDV leave from the time that the entitlement comes into being for them, as follows:

• national system employees (who are not small business employees) who commenced employment prior to 1 February 2023—entitled to 10 days paid FDV leave from 1 February 2023, which would reset on the anniversary of the commencement of their employment57

• national system employees who are small business employees who commenced employment prior to 1 August 2023—entitled to 10 days paid FDV leave from 1 August 2023, which would reset on the anniversary of the commencement of their employment 58

• non-national system employees—entitled to 10 days paid FDV leave from the day of the commencement of ILO Convention 190, which would reset on the anniversary of the commencement of their employment. If the Convention does not come into force for Australia by 1 February 2025, this entitlement would not be enlivened59

• any employees who commence employment in a workplace where the FDV entitlement already applies—entitled to 10 days paid FDV leave from the day their employment commences, which would reset on the anniversary of that commencement every year thereafter. 60

55. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 8. 56. ‘Full rate of pay’ is defined at section 18 of the Fair Work Act 2009. 57. Proposed subclauses 52(1), 52(2) of Schedule 1 to the Fair Work Act 2009 at item 22 of Schedule 1 to the Bill. 58. Proposed subclauses 52(3), 52(4) of Schedule 1 to the Fair Work Act 2009 at item 22 of Schedule 1 to the Bill. The definition

of a small business employer under the Fair Work Act , is a national system employer with fewer than 15 employees. 59. Proposed subclauses 54(2), 54(3) of Schedule 1 to the Fair Work Act 2009 at item 11 of Schedule 2 to the Bill. 60. See Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 10.

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This is provided for by proposed clauses 52 and 54 of Schedule 1 to the Fair Work Act, at item 22 of Schedule 1 to the Bill and item 11 of Schedule 2 to the Bill, respectively. The Explanatory Memorandum makes clear that this is how these provisions are intended to operate:

The effect of these subclauses is that a national system employee, other than a small business employee, who is employed at the time Schedule 1 to the amending Act commences (i.e. on 1 February 2023) would gain ten days of paid family and domestic violence leave from that date, rather than having to wait until the anniversary of the start of their employment as the entitlement is expressed in paragraph 106A(2)(a). The entitlement to ten days of paid leave would then reset on the day of the anniversary of when an employee’s employment started.

For example, a national system employee other than a small business employee who started employment with their employer on 11 October 2022 would gain ten days of paid family and domestic violence leave on 1 February 2023, and that entitlement would thereafter reset on 11 October each year of their employment with that employer. 61

This is a different basis than the system of progressively accruing paid personal/carer’s leave under the NES.62 It will mean that the amount of paid FDV leave that an employee can practically access will depend on the timing of the family and domestic violence they experience, and crucial subsequent things they must do to deal with it (such as court hearings) in relation to the anniversary of the commencement of their employment.

Example

Riley is employed on a full-time, ongoing basis by a national system employer that is not a small business.63 Riley commenced their employment with their employer on 5 March 2019. On 8 February 2024, Riley experiences family and domestic violence.

Riley immediately takes paid FDV leave to do things to respond to the family and domestic violence, including finding new accommodation, accessing police services, and attending court hearings relating to the granting of a family violence order. They take 7 full days of FDV Leave over the next three weeks.

On 5 March 2024, Riley’s FDV leave entitlement resets to a full 10 days as it is the anniversary of the commencement of their employment. Riley takes a further 8 days of FDV leave over the next 8 months to access counselling, financial and legal services to deal with the family and domestic violence.

A criminal trial is scheduled for April 2025, and Riley takes 4 days of FDV leave to attend court hearings as a witness and for other purposes. Their full ten day leave entitlement had reset on 5 March 2025.

Over 15 months, Riley was able to take 21 days of paid FDV leave. If their commencement date had been less fortunate (such as in July or November), they would not have been able to take this pattern of paid FDV Leave.

61. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 10. 62. The High Court recently clarified the correct methodology for calculation of this accruement in Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29. 63. For the purposes of this example, the employer is a constitutional corporation within the meaning of section 51(xx) of the

Constitution.

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Differences between the Bill and the FWC Provisional Decision As discussed above, the Bill proposes a stronger form of the paid FDV entitlement than the FWC had decided in the Family and domestic violence leave review 2021 decision made on 16 May 2022. The FWC notes at various points that its view on this matter was provisional.

Stakeholder view The Ai Group has criticised the Bill as departing from the decision of the FWC. The chief distinctions between the two models are set out in Table 1.64

Table 1: The chief distinctions between the two models Subject The Bill FWC Review Decision

Quantum of paid FDV leave 10 days 10 days

Extends to casuals? Yes No

Rate of pay Full rate of pay Base rate of pay

Accrual of leave 10 days from the first day of

employment. Resets annually. Accrues progressively, taking a year for new employees to reach 10 days of FDV leave in the same manner as personal leave.

Accrual cap. 10 days 10 days

Definition of family violence Expanded definition that includes unrelated members of the employee’s household, and current or former intimate partners

Existing s. 106(2) provisions. The FWC explicitly found against extension to FDV perpetrated by an unrelated member of an employee’s household.

Source: Proposed section 106BA of the Fair Work Act 2009 at item 19 of Schedule 1 to the Bill; Fair Work Commission, Decision: Family and domestic violence leave review 2021, 210-211 .

Staggered commencement of the Bill Eventually, virtually every employee in Australia may be able to access the paid FDV entitlement introduced by this Bill into the NES, if ILO Convention 190 comes into force for Australia.

The Bill however does not extend the entitlement for all employees simultaneously, and has staggered implementation, as discussed above.

This staggered commencement is for both practical and constitutional reasons. Practically, the Explanatory Memorandum states that the Bill would commence on 1 February 2023 for most national system employees rather than immediately to

give employers sufficient time before the commencement of the new entitlement to make necessary administrative updates, such as to payroll software. 65

The Explanatory Memorandum further provides:

64. AI Group, ‘Domestic Violence Bill a significant departure from FWC proposal’, media release, 28 July 2022. 65. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 5.

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To recognise the unique needs of small business with limited human resources, an additional transition period of six months would be provided for employers who meet the definition of small business employer in the Act as at 1 February 2023. 66

The delay of the commencement of Schedule 2, however, is due to constitutional, not practical reasons. The workplaces covered by Schedule 2 are ones that currently fall outside Commonwealth legislative power.

Instead, the Bill proposes to rely on ILO Convention 190 for validity. The external affairs power (section 51(xxix)) of the Constitution allows Parliament to legislate to implement international legal obligations and treaties into domestic Australian law, even with regards to such matters that otherwise do not fall within the Commonwealth’s legislative competence.

As the Australia has not yet ratified ILO Convention 190, Schedule 2 cannot commence (as it will not be constitutionally valid) until it does. This is why, the commencement of Schedule 2 is not fixed and instead commences when Australia ratifies ILO Convention 190.

The Digest will set out the constitutional basis for the FW Act, why certain employees are outside the National System, and how the treaty implementation limb of the external affairs power works.

Constitutional basis of this Bill The Commonwealth Parliament does not have plenary (that is, complete) legislative power to make laws with respect to industrial relations for all workplaces, including leave entitlements. Workplaces outside the scope of Commonwealth legislative power remain subject to state legislation.

The exact division of responsibility between the states and Commonwealth over industrial relations has been the subject of extensive litigation for the past 121 years. Over that time, the Commonwealth has gradually gained the power to regulate the vast majority of private workplaces in Australia. Workplaces covered by the operation of the Fair Work Act are referred to as being in the ‘national system’. The powers that the Commonwealth relies on include:

• constitutional corporations - that is trading, foreign or financial corporations within the meaning of section 51(xx) of the Constitution. In the WorkChoices Case67 the High Court upheld federal legislation that relied on this power to regulate the employment conditions of constitutional corporations. It is on this basis that the national system applies to most private workplaces

• trade and commerce within the meaning of section 51(i) of the Constitution

• the Territories power under section 122 of the Constitution and

• referral of power by the states— section 51(xxxvii) of the Constitution allows the states to ‘refer’ law making power to the Commonwealth. Every state but Western Australia has now done this to some extent in relation to industrial relations, although most states have reserved the power to legislate with respect to their own public servants.68

66. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 2. 67. New South Wales v Commonwealth [2006] HCA 52, see at [198] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. 68. See: Industrial Relations (Commonwealth Powers) Act 2009 (NSW); Fair Work (Commonwealth Powers) Act 2009 (Vic); Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld); Fair Work (Commonwealth Powers) Act 2009 (SA);

Industrial Relations (Commonwealth Powers) Act 2009 (Tas).

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In 2022 then, very few employers in the private sector are not covered by the FW Act, mostly being limited to sole traders, partnerships and other non-corporate employers in Western Australia. The vast majority of non-national system employees in Australia are state public servants. The FWC has published this map to illustrate this point:

Issue: the ‘victims of crime’ exclusion clauses The states that did refer their industrial relation making powers to the Commonwealth (that is, all states except WA), excluded certain matters from their referral. One such ‘excluded subject matter’ is ‘leave for victims of crime’.69

This means that employees who are only within the national system because of a state referral of powers (such as non-incorporated private sector employees in every state but WA, and large portions of the local government sector), cannot access the NES FDV entitlement in Schedule 1, if such leave would constitute ‘leave for victims of crime’.

The Explanatory Memorandum explains it in the following terms:

When Schedule 1 to the Bill commences, state referral employees will only be entitled to access the NES entitlement to paid family and domestic violence leave to the extent it does not constitute leave for victims of crime. This is because leave for victims of crime is an excluded subject matter not covered by the state referrals of industrial relations power. 70

This situation may raise the following issues:

• some employers will be uncertain if they are in the national system only because of a state referral of powers. The Corporations power, for instance, covers most incorporated entities,

69. Fair Work Act 2009, paragraph30A(1)(i). 70. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, p. 13.

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but not all as some will not meet the High Court’s definition of a ‘trading’ or ‘financial’ corporation to bring an entity within the power

• each state has its own legislative scheme regarding victims of crime, which may include leave. If a state does provide leave for victims of crime to attend court hearings, (as NSW does) it:

- may be unpaid - may only apply to a narrower subset of conduct than family and domestic violence as defined under the Bill, such as only applying to ‘violent crime’ (that is a serious indictable offence involving violence)

- may apply to a narrower subset of actions than FDV leave, such as only applying to attending court hearings.

Upon the commencement of Schedule 2, however, these issues become moot. Schedule 2 relies upon the treaty implementation limb of the external affairs power, and therefore the limitations of a state’s referrals to the Commonwealth become irrelevant, as the Bill instead relies upon the implementation of that treaty for validity. Items 5 and 11 of Schedule 2 amend relevant legislative notes and sections to make clear that from the commencement of Schedule 2, the ‘victims of crime’ exception to entitlement to FDV leave no longer applies. The Explanatory Memorandum relevantly provides:

New subclause 54(1) would provide arrangements for national system employees. The effect of this subclause is that the ‘carve out’ for leave for victims of crime in subsection 106D(3) would be ‘switched off’ from the day Schedule 2 to the Bill commences. 71

Schedule 2- Treaty Implementation Power Schedule 2 would extend the FDV leave entitlement to all employees in Australia, regardless of whether they are a national system employee. The Commonwealth can legislate in this way, even where it otherwise falls outside its legislative powers, where the legislation is implementing an bona fide international treaty or other international legal obligation.

Section 51(xxix) of the Constitution provides that the Parliament shall have power to make laws with respect to ‘external affairs’. Among other things, the High Court has long held that this power allows the Commonwealth to implement bona fide international legal obligations into domestic law,72 including on matters where the Constitution does not otherwise grant the Commonwealth legislative power to do so.73

Decisions about whether Australia should enter into a treaty—or whether it should take legally binding action in relation to a treaty, such as ratification, accession, withdrawal or the negotiation of amendments—are the responsibility of the executive government under the executive power of the Commonwealth, which is vested under section 61 of the Constitution.74

71. Explanatory Memorandum, Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, 16. 72. See R v Burgess ex parte Henry (1936) 44 CLR 608 at 644: ‘the execution and maintenance of the Constitution [under section 61] involves … the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane’.

73. See Commonwealth v Tasmania [1983] HCA 21 for a prominent example of how world heritage treaty obligations empowered the Commonwealth to take action to protect natural heritage under the Convention for the Protection of the World Cultural and Natural Heritage.

74. Victoria v Commonwealth (1996) 187 CLR 416 at p. 478 (per Brennan C. J, Toohey, Gaudron, McHugh and Gummow J. J) quoting Latham C. J in R v Burgess ex parte Henry, as quoted above. See also: Professor Leslie Zines, The High Court and the Constitution, 5th edn (2008) p. 377 (and further at pp. 342-343); and Glen Cranwell, ‘The treaty making process in Australia: a report card on recent reforms’, Australian International Law Journal 177, (2001)at pp. 178-179.

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A treaty cannot, of itself, impose legal obligations or confer legal rights upon individuals merely by reason of Australia’s signature, ratification or accession.75 It must be implemented into domestic law by the Parliament.

Consequently, new legislation is often necessary to give domestic legal effect to obligations under a treaty to which Australia is a party, as Australia’s international law obligations under a particular treaty are not directly or automatically incorporated in domestic laws upon Australia’s signature and ratification of, or accession to that treaty. 76 The external affairs power gives the Commonwealth the power to ensure that Australia can abide by its international legal obligations.

The High Court has recognised several limitations to the Commonwealth’s ability to legislate in this way:

• Existence of an obligation: There must be an international legal obligation that the legislation implements.77 The High Court has taken a ‘relaxed’ approach to the definition of an ‘obligation’, noting that the obligation itself is not the outer limit of a law enacted to implement it.78 To this end, recommendations of international bodies (explicitly the ILO) can qualify.79 The law must however relate to an actual obligation, not purely aspirational or hortatory recommendations.80

• Conformity: The law must be reasonably capable of being considered appropriate and adapted to implementing the treaty or international legal obligation.81 Partial implementation of a treaty is acceptable provided that the partial implementation does not make the law substantially inconsistent with the treaty as a whole.82

• Bona Fide: The treaty must be ‘bona fide’.83 The High Court has warned against ‘sham or circuitous device[s] to attract legislative power’, cautioning that legislation that relied on such a treaty for validity would not be a valid law.84

The Commonwealth has previously legislated to implement its obligations under various International Labour Organization conventions (and recommendations).85 Part 6-3 of the Fair Work Act already extends unpaid parental leave and related entitlements (as an implementation of ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities) and no tice of termination and related entitlements (as an implementation of ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer) to all employees . The constitutional validity of the

75. Signature itself creates an obligation to refrain from acts that would defeat the object and purpose of the treaty (Article 18, Vienna Convention on the Law of Treaties (VCLT)). There is also an expectation to proceed to ratification in good faith, but the treaty is not binding at this stage.

76. In general terms, if a treaty obligation requires the imposition of legal rights, duties, obligations or liabilities on individuals, its domestic implementation will likely require legislation. In some cases, however, the government may determine that new legislation is not required—including because the treaty obligations are implemented by existing legislation, or can be supported wholly via administrative practice (particularly if the relevant obligations are imposed exclusively on the government). ‘Treaty-making process’, DFAT website, accessed 26 July 2016; Cranwell, ‘The treaty making process in Australia’, p. 183.

77. Victoria v Commonwealth (1996) 187 CLR 416 at [34] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. 78. Victoria v Commonwealth (1996) 187 CLR 416 at [34] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. 79. Victoria v Commonwealth (1996) 187 CLR 416 at [33] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. 80. Victoria v Commonwealth (1996) 187 CLR 416 at [33] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ: ’The law

must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states.’ See also Pape v Commissioner of Taxation [2009] HCA 23, per Hayne and Kiefel JJ at [372]-[373]. 81. Victoria v Commonwealth (1996) 187 CLR 416 at [38] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. 82. Victoria v Commonwealth (1996) 187 CLR 416 at [38] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. 83. See Commonwealth v Tasmania [1983] HCA 21. 219, 259, 122 per Brennan, Deane and Mason JJ. 84. Horta v Commonwealth (1994) 181 CLR 183, at [12], per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh

JJ.

85. See Victoria v Commonwealth (1996) 187 CLR 416.

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Commonwealth legislating to implement ILO conventions in this way has been upheld in the High Court.86

Schedule 2 would insert a new Division (Division 2A) into Part 6-3 of the Fair Work Act, extending the entitlement to paid family and domestic violence leave to non-national system employees as an implementation of ILO Convention 190.

Compliance with ILO Convention 190—Violence and Harassment Convention 2019 ILO Convention 190 is the Violence and Harassment Convention 2019. It establishes the right of everyone to a ‘world of work’ free from violence and harassment, including gender-based violence and harassment. ILO Convention 190 is supplemented by Recommendation 206 (Violence and Harassment Recommendation 2019), which gives further, more detailed guidance on how the Convention should be implemented at national level. As addressed above, this recommendation itself can form a basis of implementing legislation.

Article 10(f) of the Violence and Harassment Convention 2019 provides that Members should recognize the effects of domestic violence and, so far as is reasonably practicable, mitigate its impact in the world of work. Article 18 of Recommendation 206 relevantly provides that for the purposes of implementing its obligations under measures article 10(f) appropriate measures may include:

(a) leave for victims of domestic violence

(b) flexible work arrangements and protection for victims of domestic violence

(c) temporary protection against dismissal for victims of domestic violence, as appropriate except on grounds unrelated to domestic violence and its consequences.

The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between states. 87 Article 26 of the VCLT says that a signatory to a treaty must not only have to abide by treaty obligations but the signatory must abide by those obligations in good faith. Thus, it creates an obligation upon the state to make an effort to try and meet the purpose set out in the provision of a treaty.

86. Victoria v Commonwealth (1996) 187 CLR 416. 87. The 1969 Vienna Convention on the Law of Treaties, regulating treaties between States, lies at the heart of international law. It covers fundamental treaty issues such as the effect of signing a treaty, reservations to treaties, their interpretation and the grounds for terminating a treaty, for instance breach.

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