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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Family and
Domestic Violence Leave) Bill 2018
No. , 2018
(Jobs and Innovation)
A Bill for an Act to amend the Fair Work Act 2009
to provide for unpaid family and domestic violence
leave, and for related purposes
No. , 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Fair Work Act 2009
3
No. , 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
1
A Bill for an Act to amend the Fair Work Act 2009
1
to provide for unpaid family and domestic violence
2
leave, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Fair Work Amendment (Family and Domestic
6
Violence Leave) Act 2018.
7
2 Commencement
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(1) Each provision of this Act specified in column 1 of the table
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commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
No. , 2018
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
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3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
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concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Section 12
4
Insert:
5
close relative: see subsection 106B(3).
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family and domestic violence: see subsection 106B(2).
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unpaid family and domestic violence leave means unpaid family
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and domestic violence leave to which a national system employee
9
is entitled under section 106A.
10
2 Subsection 17(2) (note)
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Omit "and compassionate leave", substitute ", compassionate leave and
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unpaid family and domestic violence leave".
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3 Paragraph 61(2)(e)
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Omit "and compassionate leave", substitute ", compassionate leave and
15
unpaid family and domestic violence leave".
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4 Division 7 of Part 2-2 (heading)
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Omit "and compassionate leave", substitute ", compassionate leave
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and unpaid family and domestic violence leave".
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5 After Subdivision C of Division 7 of Part 2-2
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Insert:
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Subdivision CA--Unpaid family and domestic violence leave
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106A Entitlement to unpaid family and domestic violence leave
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(1) An employee is entitled to 5 days of unpaid family and domestic
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violence leave in a 12 month period.
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(2) Unpaid family and domestic violence leave:
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Schedule 1 Amendments
4
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
No. , 2018
(a) is available in full at the start of each 12 month period of the
1
employee's employment; and
2
(b) does not accumulate from year to year; and
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(c) is available in full to part-time and casual employees.
4
(3) For the purposes of subsection (2), if an employee is employed by
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a particular employer:
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(a) as a casual employee; or
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(b) for a specified period of time, for a specified task or for the
8
duration of a specified season;
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the start of the employee's employment is taken to be the start of
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the employee's first employment with that employer.
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(4) The employee may take unpaid family and domestic violence leave
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as:
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(a) a single continuous 5 day period; or
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(b) separate periods of one or more days each; or
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(c) any separate periods to which the employee and the employer
16
agree, including periods of less than one day.
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(5) To avoid doubt, this section does not prevent the employee and the
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employer agreeing that the employee may take more than 5 days of
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unpaid leave to deal with the impact of family and domestic
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violence.
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106B Taking unpaid family and domestic violence leave
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(1) The employee may take unpaid family and domestic violence leave
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if:
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(a) the employee is experiencing family and domestic violence;
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and
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(b) the employee needs to do something to deal with the impact
27
of the family and domestic violence; and
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(c) it is impractical for the employee to do that thing outside the
29
employee's ordinary hours of work.
30
Note 1:
Examples of actions, by an employee who is experiencing family and
31
domestic violence, that could be covered by paragraph (b) are
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arranging for the safety of the employee or a close relative (including
33
relocation), attending urgent court hearings or accessing police
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services.
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Amendments Schedule 1
No. , 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
5
Note 2:
The notice and evidence requirements of section 107 must be
1
complied with.
2
(2) Family and domestic violence is violent, threatening or other
3
abusive behaviour by a close relative of an employee that:
4
(a) seeks to coerce or control the employee; and
5
(b) causes the employee harm or to be fearful.
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(3) A close relative of the employee is a person who:
7
(a) is a member of the employee's immediate family; or
8
(b) is related to the employee according to Aboriginal or Torres
9
Strait Islander kinship rules.
10
Note:
Immediate family is defined in section 12.
11
106C Confidentiality
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(1) Employers must take steps to ensure information concerning any
13
notice or evidence an employee has given under section 107 of the
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employee taking leave under this Subdivision is treated
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confidentially, as far as it is reasonably practicable to do so.
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(2) Nothing in this Subdivision prevents an employer from disclosing
17
information provided by an employee if the disclosure is required
18
by an Australian law or is necessary to protect the life, health or
19
safety of the employee or another person.
20
Note:
Information covered by this section that is personal information may
21
also be regulated under the Privacy Act 1988.
22
106D Operation of unpaid family and domestic violence leave and
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leave for victims of crime
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(1) This Subdivision does not exclude or limit the operation of a law of
25
a State or Territory to the extent that it provides for leave for
26
victims of crime.
27
(2) If an employee who is entitled, under a law of a State or Territory,
28
to leave for victims of crime is also entitled to leave under this
29
Subdivision, that law applies in addition to this Subdivision.
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(3) A person who is a national system employee only because of
31
section 30C or 30M is entitled to leave under this Subdivision only
32
Schedule 1 Amendments
6
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
No. , 2018
to the extent that the leave would not constitute leave for victims of
1
crime.
2
Note:
Leave for victims of crime is a non-excluded matter under
3
paragraph 27(2)(h).
4
106E Entitlement to days of leave
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What constitutes a day of leave for the purposes of this Subdivision
6
is taken to be the same as what constitutes a day of leave for the
7
purposes of section 85 and Subdivisions B and C.
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6 At the end of subsection 107(3)
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Add:
10
; or (d) if it is unpaid family and domestic violence leave, and the
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employee has met the requirement specified in
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paragraph 106B(1)(a)--the leave is taken for the purpose
13
specified in paragraph 106B(1)(b), and the requirement
14
specified in paragraph 106B(1)(c) is met.
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7 In the appropriate position in Schedule 1
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Insert:
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Part 8--Amendments made by the Fair Work
18
Amendment (Family and Domestic
19
Violence Leave) Act 2018
20
21
39 Entitlement to unpaid family and domestic violence leave
22
(1) Subdivision CA of Division 7 of Part 2-2, as inserted by the Fair
23
Work Amendment (Family and Domestic Violence Leave) Act
24
2018, applies in relation to an employee whose employment started
25
before the commencement of that Act as if the period:
26
(a) starting on that commencement; and
27
(b) ending on the first day after that commencement that is an
28
anniversary of the day the employment started;
29
were a 12 month period.
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Amendments Schedule 1
No. , 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
7
(2) For the purposes of this clause, if an employee is employed by a
1
particular employer:
2
(a) as a casual employee; or
3
(b) for a specified period of time, for a specified task or for the
4
duration of a specified season;
5
the start of the employee's employment is taken to be the start of
6
the employee's first employment with that employer.
7
40 Resolving uncertainties and difficulties about interaction between
8
enterprise agreements and unpaid family and domestic
9
violence leave
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(1) On application by an employer, employee or employee
11
organisation covered by an enterprise agreement that was made
12
before the commencement of the Fair Work Amendment (Family
13
and Domestic Violence Leave) Act 2018, the FWC may make a
14
determination varying the agreement:
15
(a) to resolve an uncertainty or difficulty relating to the
16
interaction between the agreement and the following (the
17
unpaid family and domestic violence leave provisions):
18
(i) the provisions of Subdivision CA of Division 7 of
19
Part 2-2;
20
(ii) section 107, to the extent that it relates to taking leave
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under that Subdivision; or
22
(b) to make the agreement operate effectively with the unpaid
23
family and domestic violence leave provisions.
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(2) A variation of an enterprise agreement under this clause operates
25
from the day specified in the determination, which may be a day
26
before the determination is made.
27