Title Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 [No. 2]
Database Explanatory Memoranda
Date 14-01-2021 03:37 PM
Source Senate
System Id legislation/ems/s1285_ems_aa154a1e-53f3-4485-aaf7-559b8cdfd157


Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 [No. 2]

 

 

 

 

2019-2020

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

FAIR WORK AMENDMENT (TEN DAYS PAID DOMESTIC AND FAMILY VIOLENCE LEAVE) BILL 2020

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Jenny McAllister)

 


FAIR WORK AMENDMENT (TEN DAYS PAID DOMESTIC AND FAMILY VIOLENCE LEAVE) BILL 2020

 

OUTLINE

 

The Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 (the Bill) will amend the Fair Work Act 2009 (the Act) to improve the existing entitlement in the National Employment Standards (NES) from five days unpaid domestic and family violence leave to ten days paid domestic and family violence leave.

 

Domestic and family violence is a significant issue for the Australian community and affects employees of all ages and backgrounds. The impact on the economy in lost productivity, absenteeism and staff turnover is significant. In many circumstances, employees are unable to take the necessary activities needed to make safe arrangements for themselves and their dependents if it comes at a financial cost. The introduction of paid domestic and family leave in the NES would provide valuable financial support to those employees.

 

The existing domestic and family violence leave entitlement will be improved by providing paid leave and doubling the period that can be taken in a 12-month period of employment. This will strengthen the existing entitlement and align the NES with the practices of many Australian employers, that already provide paid leave to employees who are experiencing domestic and family violence and need to respond within the ordinary hours of work.

 

The improved entitlement in the Bill would:

·         provide ten days of paid domestic and family violence leave in a 12-month period;

·         provide for employees to access paid domestic and family violence at their base pay rate for usual hours of work in the period the leave was taken;

·         enable an employee and employer to agree additional paid or unpaid leave can be taken in addition to the 10 days paid domestic and family violence leave; and

·         clarify and expand the reasons for which a person can take paid domestic and family violence leave to make sure people can take practical and necessary steps to protect their immediate and future safety;

·         tighten the confidentiality provisions to remove any uncertainty about the handling of personal employee information in the workplace.

 

The improved entitlement continues to be available to employees of all types, including casual employees, and is available in full at the beginning of each 12-month period of the employee’s employment, and does not accumulate year to year. The entitlement will be pro-rated for part-time or casual employees.


 

NOTES ON CLAUSES

Clause 1

1.           Clause 1 sets out how the new Act will be cited – the Fair Work Amendment (Ten Days Paid Family and Domestic Violence Leave) Act 2020.

Clause 2

2.           Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the Act.

Clause 3

3.           Clause 3 provides that the Act that is specified in the Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule that has effect according to its terms.

Schedule 1—Amendments

Fair Work Act 2009

Items 1-2

4.         Section 12 of the Act contains the Dictionary. These items repeal the definition of unpaid family and domestic leave and inserts a new definition into the Dictionary for ‘paid family and domestic violence leave’. The new definition of ‘paid family and domestic violence leave’ defines the term to mean paid family and domestic violence leave to which a national system employee is entitled under section 106A.

Items 3-11

5.         Items 3-11 change family and domestic violence leave references from ‘unpaid family and domestic violence leave’ to ‘paid family and domestic violence leave’; ‘unpaid’ to ‘paid’; and ‘5 day period’ to ‘10 day period’.

Item 12

6.         Item 12 changes subsection 106A (5) to provide for an employee, in agreement with their employer, to take additional paid and unpaid leave in addition to the 10 days paid family and domestic violence leave which will be introduced by this Bill.

Item 13

7.         Item 13 provides for an employee, other than a casual employee, to be paid family and domestic violence level at the base rate of pay for the employee’s ordinary hours of work in the period. Or, a casual employee to be paid at their base rate, plus any casual loading for the hours the employee was rostered during the period they are taking paid family and domestic violence leave.

Items 14-15

8.         Items 14-15 change references from ‘unpaid’ family and domestic violence leave to ‘paid’ family and domestic violence leave.

Item 16

9.         Item 16 clarifies and expands reasons a person can take paid family and domestic violence leave.

Item 17

10.       Item 17 strengthens the privacy obligations placed on employers in relation to an employee who takes paid family and domestic violence leave.

Items 18-19

11.       Items 18-19 replace references to ‘unpaid’ family and domestic violence leave with references to ‘paid’ family and domestic and violence leave.

Item 20

12.       Item 20 inserts a new Part into the Act specifying that employees have access to the full entitlement to paid family and domestic violence leave, from the commencement of this Bill, or from the start of a person’s employment. the Schedule does, if required. Otherwise, follow the structure of the Bill, including headings for Parts, Acts, Divisions, and Items.


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020

 

This 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.

 

Overview of the Bill

The Fair Work Amendment (Ten Days Paid Family and Domestic Violence Leave) Bill 2020 (the Bill) will amend the Fair Work Act 2009 (the Act) to improve the existing entitlement in the National Employment Standards (NES) from five days unpaid family and domestic violence leave to ten days paid family and domestic violence leave.

The existing family and domestic violence leave entitlement will be improved by providing paid leave and doubling the period that can be taken in a 12-month period of employment. This will modernise the existing entitlement and align the NES with many Australian workplaces, that recognise the importance of offering financial support to their employees who are experiencing domestic and family violence, and need to respond within the ordinary hours of work.

Human rights implications

The Bill engages the following rights:

·         the right to work and to just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

·         the right of women not to be discriminated against based on gender under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).

Right to work and to just and favourable conditions of work

Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right.

Family and domestic violence disrupts employment and precludes workforce participation, and some employees who need time off work because they are experiencing family and domestic violence may see resignation as their only option. Access to paid family and domestic violence leave minimises the financial and employment disruption that occurs because of domestic and family violence by enabling an employee to take steps to deal with the impact of violence, while still maintaining their employment.

Article 7 of the ICESR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of just and favourable working conditions.

This Bill further promotes the rights to just and favourable working conditions by doubling the period of leave and providing financial support during the period of leave. An employee may be able to access existing leave entitlements in the Act in some circumstances where they are experiencing domestic and family violence (e.g. personal/carer’s leave in certain situations). However, there are a number of purposes for which an employee may not be able to access existing leave entitlements in the Act, for example, where an employee needs to urgently find accommodation for themselves, seek counselling or attend an appointment with a lawyer. The improved entitlement would grant employees in the national system a guaranteed minimum entitlement, enabling them to take time off work where they might not otherwise have any available leave.

Right of women not to be discriminated against based on gender

The CEDAW provides that in relation to discrimination against women State Parties must:

·         ensure the effective protection of women against acts of discrimination (Article 2(c));

·         ensure the full development and advancement of women (Article 3); and

·         take all appropriate measures to eliminate discrimination against women in the field of employment to ensure the same rights between men and women (Article 11).

Article 26 of the ICCPR requires State laws to guarantee equal and effective protection against discrimination on a number of grounds, including sex.

The UN Committee on the Elimination of All Forms of Discrimination against Women has stated that gender-based violence, including domestic violence, is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men. While family and domestic violence can be experienced by anyone, it is primarily a gendered phenomenon in that it predominantly affects women.

Access to paid family and domestic violence leave provided for in the Bill positively engages the rights of women not to be discriminated against based on gender by providing financial support to assists employees to manage the consequences of family and domestic violence. The retainment of employment is an important pathway out of violent relationships, and sustained periods of employment can provide financial security, independence, social networks and increased self-esteem.

Paid family and domestic violence leave would enable an affected employee to take time off from work to engage in processes aimed at lessening the impacts of violence and preventing future violence, such as attending counselling sessions and engaging in police and court proceedings. Where an employee would not otherwise have access to a leave entitlement to engage in these processes, the entitlement provided for in the Bill will assist these employees by retaining employment and the financial and personal benefits that come with employment, particularly during the financially difficult circumstances of experiencing family and domestic violence.

Conclusion

This Bill is compatible with human rights because it advances the protection and enjoyment of human rights.

Senator Jenny McAllister