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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 (Improving
National Employment Standards) Bill
2018
No. , 2018
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
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 (Improving National Employment Standards)
Bill 2018
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Fair Work Amendment (Improving National
5
Employment Standards) Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
No. , 2018
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
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Section 12
4
Insert:
5
eligible family and domestic violence leave activity: see
6
section 103D.
7
eligible family and domestic violence leave relationship: see
8
section 103E.
9
experiences family or domestic violence: see section 103C.
10
paid family and domestic violence leave means paid family and
11
domestic violence leave to which a national system employee is
12
entitled under section 103A.
13
2 Section 12 (definition of permissible occasion)
14
Omit "102 and 104", substitute "102, 103H and 104".
15
3 Section 12
16
Insert:
17
unpaid family and domestic violence leave means unpaid family
18
and domestic violence leave to which a national system employee
19
is entitled under section 103H.
20
4 Subsection 17(2) (note)
21
After "personal/carer's leave", insert ", family and domestic violence
22
leave".
23
5 Paragraph 61(2)(e)
24
After "personal/carer's leave", insert ", family and domestic violence
25
leave".
26
6 Paragraphs 65(1A)(e) and (f)
27
Repeal the paragraphs, substitute:
28
Schedule 1 Amendments
4
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
No. , 2018
(e) the employee engages in one or more eligible family and
1
domestic violence leave activities in connection with an
2
experience of the employee of family or domestic violence;
3
(f) the employee engages in one or more eligible family and
4
domestic violence leave activities in connection with an
5
experience of another person, with whom the employee has
6
an eligible family and domestic violence leave relationship,
7
of family or domestic violence;
8
(g) the employee provides care or support to another person:
9
(i) with whom the employee has an eligible family and
10
domestic violence leave relationship; and
11
(ii) who requires care or support because of an experience
12
of that other person of family or domestic violence.
13
7 Division 7 of Part 2-2 (heading)
14
Omit "and compassionate leave", substitute ", family and domestic
15
violence leave and compassionate leave".
16
8 After Subdivision B of Division 7 of Part 2-2
17
Insert:
18
Subdivision BA--Paid family and domestic violence leave
19
103A Entitlement to paid family and domestic violence leave
20
Amount of leave
21
(1) An employee is entitled to 10 days of paid family and domestic
22
violence leave per year.
23
Accrual of leave
24
(2) An employee's entitlement to paid family and domestic violence
25
leave for a year accrues in full:
26
(a) at the start of the year; or
27
(b) if the employee's employment with the employer starts at a
28
later time during the year--at that time.
29
(3) An employee's entitlement to paid family and domestic violence
30
leave does not accumulate from year to year.
31
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
5
103B Taking paid family and domestic violence leave
1
(1) An employee may take paid family and domestic violence leave if:
2
(a) the employee experiences family or domestic violence; and
3
(b) the leave is taken to engage in an eligible family and
4
domestic violence leave activity in connection with that
5
experience of family or domestic violence.
6
(2) An employee may take paid family and domestic violence leave if:
7
(a) another person experiences family or domestic violence; and
8
(b) the employee has an eligible family and domestic violence
9
leave relationship with the other person; and
10
(c) either:
11
(i) the leave is taken for the employee to engage in an
12
eligible family and domestic violence leave activity in
13
connection with that other person's experience of family
14
or domestic violence; or
15
(ii) the other person requires care or support because of that
16
experience of family or domestic violence, and the leave
17
is taken for the employee to provide care or support to
18
that other person.
19
(6) An employee may take paid family and domestic violence leave as:
20
(a) a single continuous 10 day period; or
21
(b) any separate periods.
22
(7) An employee may take paid family and domestic violence leave
23
during a particular period even if the employee could instead take
24
another kind of leave for that period.
25
Note:
The notice and evidence requirements of section 107 must be
26
complied with.
27
103C When a person experiences family or domestic violence
28
A person (the first person) experiences family or domestic
29
violence if:
30
(a) the first person experiences violent, threatening or other
31
behaviour by another person (the second person); and
32
(b) the first person has an eligible family and domestic violence
33
leave relationship with the second person; and
34
Schedule 1 Amendments
6
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
No. , 2018
(c) the behaviour coerces or controls the first person, or causes
1
the first person to be fearful.
2
Example: Behaviours to which this section may apply include (but are not
3
limited to) the following:
4
(a) an assault;
5
(b) a sexual assault or other sexually abusive behaviour;
6
(c) stalking;
7
(d) repeated derogatory taunts;
8
(e) intentionally damaging or destroying property;
9
(f) intentionally causing death or injury to an animal;
10
(g) unreasonably denying the first person the financial autonomy that
11
the first person would otherwise have had;
12
(h) unreasonably withholding financial support needed to meet the
13
reasonable living expenses of the first person, or the first
14
person's child, at a time when the first person is entirely or
15
predominantly dependent on the second person for financial
16
support;
17
(i) preventing the first person from making or keeping connections
18
with his or her family, friends or culture;
19
(j) unlawfully depriving the first person, or any member of the first
20
person's family, of his or her liberty.
21
103D Meaning of eligible family and domestic violence leave activity
22
Each of the following is an eligible family and domestic violence
23
leave activity:
24
(a) receiving counselling or otherwise attending an appointment
25
with a person who provides support to survivors of family or
26
domestic violence;
27
(b) receiving medical attention;
28
(c) receiving legal advice;
29
(d) attending legal proceedings;
30
(e) relocating or making other safety arrangements;
31
(f) any other activity associated with an experience of family or
32
domestic violence.
33
103E Meaning of eligible family and domestic violence leave
34
relationship
35
A person (the first person) has an eligible family and domestic
36
violence relationship with another person (the second person) if:
37
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
7
(a) the second person is a spouse, de facto partner, child, parent,
1
grandparent, grandchild or sibling of the first person; or
2
(b) the second person is a child, parent, grandparent, grandchild
3
or sibling of a spouse or de facto partner of the first person;
4
or
5
(c) the second person is related to the first person under
6
Aboriginal or Torres Strait Islander kinship rules; or
7
(d) if the first person is a member of a community that accepts
8
relationships other than those referred to in paragraphs (a)
9
and (b) as kinship ties--the second person is a person who is
10
accepted by that community to be related to the first person.
11
103F Employee taken not to be on paid family and domestic violence
12
leave at certain times
13
Public holidays
14
(1) If the period during which an employee takes paid family and
15
domestic violence leave includes a day or part-day that is a public
16
holiday in the place where the employee is based for work
17
purposes, the employee is taken not to be on paid family and
18
domestic violence leave on that public holiday.
19
Other periods of leave
20
(2) If the period during which an employee takes paid family and
21
domestic violence leave includes a period of any other leave (other
22
than unpaid parental leave) under this Part, or a period of absence
23
from employment under Division 8 (which deals with community
24
service leave), the employee is taken not to be on paid family and
25
domestic violence leave for the period of that other leave or
26
absence.
27
103G Payment for paid family and domestic violence leave
28
If, in accordance with this Subdivision, an employee takes a period
29
of paid family and domestic violence leave, the employer must pay
30
the employee:
31
Schedule 1 Amendments
8
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
No. , 2018
(a) for an employee other than a casual employee--at the
1
employee's base rate of pay for the employee's ordinary
2
hours of work in the period; or
3
(b) for a casual employee--at the employee's base rate of pay,
4
plus any casual loading that the employer would be required
5
to pay the employee, for the hours of work in the period for
6
which the employee was rostered.
7
Subdivision BB--Unpaid family and domestic violence leave
8
103H Entitlement to unpaid family and domestic violence leave
9
An employee is entitled to 2 days of unpaid family and domestic
10
violence leave for each occasion (a permissible occasion) when:
11
(a) the employee experiences family or domestic violence; or
12
(b) another person, with whom the employee has an eligible
13
family and domestic violence leave relationship, experiences
14
family or domestic violence.
15
103J Taking unpaid family and domestic violence leave
16
(1) An employee may take unpaid family and domestic violence leave
17
for a particular permissible occasion if:
18
(a) the leave is associated with the employee engaging in an
19
eligible family and domestic violence leave activity in
20
connection with the experience of family or domestic
21
violence referred to in paragraph 103H(a) or (b); or
22
(b) the other person who experienced family or domestic
23
violence as referred to in paragraph 103H(b) requires care or
24
support because of that experience, and the leave is taken to
25
provide care or support to that other person.
26
(2) An employee may take unpaid family and domestic violence leave
27
for a particular permissible occasion as:
28
(a) a single continuous period of up to 2 days; or
29
(b) any separate periods.
30
(3) An employee cannot take unpaid family and domestic violence
31
leave during a particular period if the employee could instead take
32
paid family and domestic violence leave.
33
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
9
Note:
The notice and evidence requirements of section 107 must be
1
complied with.
2
Subdivision BC--Non-disclosure of information
3
103K Information relating to taking of family and domestic violence
4
leave not to be disclosed
5
Unauthorised disclosure of information
6
(1) Subsection (2) applies to the following information:
7
(a) information obtained by an employer that an employee has
8
given notice of the taking of paid family and domestic
9
violence leave or unpaid family and domestic violence leave;
10
(b) any other information obtained by an employer relating to an
11
employee taking, or proposing to take, paid family and
12
domestic violence leave or unpaid family and domestic
13
violence leave.
14
(2) The employer must not disclose the information to any other
15
person if the information may enable the employee to be identified.
16
Note:
This subsection is a civil remedy provision (see Part 4-1).
17
(3) Subsection (2) does not apply if:
18
(a) the disclosure is to the employee; or
19
(b) the disclosure is reasonably necessary for the purposes of
20
enabling the employee to take the leave; or
21
(c) the disclosure is required or authorised by or under a law; or
22
(d) the employee has consented, in writing, to the disclosure.
23
Note:
Paragraph (b) may (for example) permit disclosure to persons who
24
process leave taken by the employee (for example, human resources or
25
payroll staff).
26
Unauthorised secondary disclosure
27
(4) A person who obtains information under paragraph (3)(b) must not
28
disclose the information to any other person.
29
Note:
This subsection is a civil remedy provision (see Part 4-1).
30
(5) Subsection (4) does not apply if:
31
Schedule 1 Amendments
10
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
No. , 2018
(a) the disclosure is to the employee or the employer; or
1
(b) the person discloses the information for the purposes for
2
which the information was disclosed to the person; or
3
(c) the disclosure is required or authorised by or under a law; or
4
(d) the employee has consented, in writing, to the disclosure.
5
Note:
Information to which this section applies that is personal information
6
may also be regulated under the Privacy Act 1988.
7
9 After paragraph 107(3)(b)
8
Insert:
9
(ba) if it is paid family and domestic violence leave--the leave is
10
taken for a reason specified in section 103B; or
11
(bb) if it is unpaid family and domestic violence leave--the leave
12
is taken for a permissible occasion in circumstances specified
13
in subsection 103J(1); or
14
10 Subsection 107(5)
15
After "unpaid carer's leave", insert ", paid family and domestic violence
16
leave, unpaid family and domestic violence leave".
17
11 Section 107 (note)
18
Omit "Note", substitute "Note 1".
19
12 At the end of section 107
20
Add:
21
Note 2:
Information obtained by an employer relating to the taking of family
22
and domestic violence leave is also regulated under section 103K.
23
13 Subsection 539(2) (after table item 5)
24
Insert:
25
26
Part 2-2--National Employment Standards
5AA
103K(2)
103K(4)
(a) an employee;
(b) an employee
organisation;
(c) an inspector
(a) the Federal Court;
(b) the Federal
Circuit Court
30 penalty
units
27
Amendments Schedule 1
No. , 2018
Fair Work Amendment (Improving National Employment Standards)
Bill 2018
11
14 In the appropriate position in Schedule 1
1
Insert:
2
Part 8--Amendments made by the Fair Work
3
Amendment (Improving National
4
Employment Standards) Act 2018
5
6
39 Entitlement to paid family and domestic violence leave
7
(1) Subject to subclause (2), Subdivision BA of Division 7 of Part 2-2,
8
as inserted by the Fair Work Amendment (Improving National
9
Employment Standards) Act 2018, applies in relation to the year in
10
which this clause commences and to each later year.
11
(2) Subdivision BA of Division 7 of Part 2-2, as inserted by the Fair
12
Work Amendment (Improving National Employment Standards)
13
Act 2018, applies in relation to the year in which this clause
14
commences as if the reference in paragraph 103A(2)(a) to the start
15
of the year were instead a reference to the commencement of this
16
clause.
17