Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill
2020
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Shadow Minister for Families and Social Services, the Hon. Linda Burney MP
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.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
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 provides a table setting out the commencement dates of the various sections in,
and Schedules to, the Act.
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 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 changes 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 change 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 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 change references from 'unpaid' family and domestic violence leave to 'paid'
family and domestic violence leave.
Item 16 clarifies and expands reasons a person can take paid family and domestic
violence leave.
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 replace references to 'unpaid' family and domestic violence leave with
references to 'paid' family and domestic and violence leave.
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.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
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.
Shadow Minister for Families and Social Services the Hon Linda Burney MP