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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK AMENDMENT (FAMILY AND DOMESTIC VIOLENCE LEAVE)
BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Jobs and Industrial Relations,
the Hon Kelly O'Dwyer MP)
Outline
FAIR WORK AMENDMENT (FAMILY AND DOMESTIC VIOLENCE LEAVE)
BILL 2018
OUTLINE
The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the Bill)
would amend the Fair Work Act 2009 (the Act) to insert a new entitlement in the National
Employment Standards (NES) to five days of unpaid family and domestic violence leave.
Family and domestic violence is a significant community issue, which has a real and tangible
impact on employees and employers in the workplace. It disrupts employment and precludes
workforce participation because some employees who need time off work to deal with the
impact of the family and domestic violence may see resignation as their only option. The
effects of family and domestic violence are far reaching and extend beyond the individual
directly affected to their families and the general community. The inclusion of unpaid family
and domestic leave in the NES would provide invaluable support to employees who are
experiencing family and domestic violence.
A new entitlement to unpaid family and domestic violence leave in the NES would also
ensure, as far as possible, consistency in entitlements for employees in the national system.
From 1 August 2018, as a result of the 26 March 2018 decision the Fair Work Commission
(the Commission) made as part of the 4 Yearly Review of Modern Awards, a new clause
providing five days of unpaid family and domestic violence leave took effect in 123 modern
industry and occupation awards. The new clauses inserted by the Commission only affect
employees whose terms and conditions are set by those awards. Many Australian employers
have also already implemented policies and entitlements to provide such support to their
employees. However, there are still millions of Australian employees in the national system
who do not have access to family and domestic violence leave.
The entitlement in the Bill to unpaid family and domestic violence leave is consistent with
the new modern award entitlement that the Commission inserted into all modern industry and
occupation awards. After broad consultation, the Commission finalised the wording of the
Model Clause to be inserted into the modern awards on 6 July 2018.
In line with the Commission's Model Clause, the entitlement in the Bill would:
provide five days of unpaid family and domestic violence leave in a 12 month period;
apply to all types of employees, including casual employees;
be available in full at the commencement of each 12 month period, rather than
accruing through the year;
not accumulate from year to year; and
be available in full to part-time and casual employees, rather than pro-rated.
Employees would be able to access unpaid family and domestic violence leave if they are
experiencing family and domestic violence, need to do something to deal with the impact of
that family and domestic violence, and it is impractical to do that thing outside their ordinary
hours of work. This could include such activities as making arrangements for their own safety
House of Representatives iii Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Outline
or for the safety of a close relative (including relocation), attending urgent court hearings, or
accessing police services.
Employers would also be required to take steps to ensure information concerning any notice
an employee has given, or evidence an employee has provided, of the taking of family and
domestic violence leave is treated confidentially, as far as it is reasonably practicable to do
so. There are two exceptions to this obligation, being that the obligation would not apply
when a disclosure of information is required by a law of the Commonwealth, a State or a
Territory, or where a disclosure is necessary to protect the life, health or safety of the
employee or another person. Information concerning an employee's experience of family and
domestic violence is sensitive, and if mishandled can have adverse consequences for the
employee. Employers should consult with such employees regarding the handling of this
information.
The provision of this leave in the NES would recognise that employees experiencing family
and domestic violence may need to undertake activities during working hours to deal with the
impact of family and domestic violence, and would allow them time to do so as a minimum
workplace entitlement. Contravention of a provision of the NES by an employer may give
rise to a civil penalty. An employee who exercises the new workplace right to take family and
domestic violence leave would also be protected from unlawful adverse action under the
existing general protections provisions of the Act.
House of Representatives iv Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
Nil
House of Representatives v Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018
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 object of the Fair Work Act 2009 (the Act) is to provide a balanced framework for
cooperative and productive workplace relations that promotes national economic prosperity
and social inclusion for all Australians. The National Employment Standards (NES) in the
Act further this object by providing a guaranteed safety net of fair, relevant and enforceable
minimum terms and conditions for employees covered by the Act.
This Bill would amend the Act to introduce an entitlement to five days of unpaid family and
domestic violence leave into the NES. The new entitlement is consistent with the entitlement
in the Model Clause developed by the Fair Work Commission (the Commission), as part of
the 4 Yearly Review of Modern Awards (4 Yearly Review).1 The Model Clause, which took
effect in 123 modern industry and occupation awards from 1 August 2018, provides an
entitlement to five days of unpaid family and domestic violence leave for employees whose
terms and conditions of employment are set by one of those awards.
Under the new entitlement in the NES that would be inserted by the Bill, an employee who is
experiencing family and domestic violence would be able to take the new leave if they need
to do something to deal with the impact of family and domestic violence and it is impractical
for the employee to do that thing outside their ordinary hours of work. Contravention of a
provision of the NES by an employer may give rise to a civil penalty. An employee who
exercises, or proposes to exercise, the new workplace right to take family and domestic
violence leave would also be protected from unlawful adverse action under the existing
general protections provisions of the Act.
The amendments in the Bill would assist employees affected by family and domestic violence
to remain in continuous employment, which in turn would provide financial security,
independence, social networks and increased self-esteem.
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);
1
On 26 March 2018, the Fair Work Commission (Commission) decided that an unpaid family and domestic
violence leave entitlement should be inserted into all but three modern industry and occupation awards. On 3
May 2018, the Commission extended that decision to the three remaining modern industry and occupation
awards and released a draft Model Clause to give effect to these decisions. After taking submissions on the
drafting of the Model Clause, the Commission released the final Model Clause on 6 July 2018.
House of Representatives vi Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Statement of Compatibility with Human Rights
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); and
the right to privacy and reputation under Article 17 of the 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.
During the 4 Yearly Review, the Commission noted that family and domestic violence
disrupts employment and precludes workforce participation,2 and that some employees who
need time off work because they are experiencing family and domestic violence may see
resignation as their only option.3 Access to family and domestic violence leave would
minimise the employment disruption that occurs because of family and domestic 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.
The introduction of the new entitlement in the Bill promotes the right to just and favourable
working conditions. An employee may be able to access existing leave entitlements in the
Act in some circumstances where they are experiencing family and domestic violence (e.g.
personal/carer's leave in certain situations). However, there are a number of purposes for
which an employee would not be able to access existing leave entitlements in the Act, for
example, where an employee needs to urgently find accommodation for themselves or attend
an appointment with a lawyer. The new 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 leave available.
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
2
4 yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494 [79]-
[82].
3
Ibid [61].
House of Representatives vii Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Statement of Compatibility with Human Rights
that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality
with men.4 During the 4 Yearly Review, the Commission similarly noted that family and
domestic violence is a gendered phenomenon in that it predominantly affects women.5
The new entitlement to 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 a
new leave entitlement that assists employees to manage the consequences of family and
domestic violence, an issue that disproportionately affects women. As the Commission noted,
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.6 The Commission further observed that women who are
experiencing or have experienced domestic violence have a more disrupted work history, are
on lower personal incomes, have had to change jobs frequently, and are more likely to be
employed in casual and part-time work, than women with no experience of violence.7 The
Commission also noted that separating from a violent relationship is difficult, and is
associated with financial hardship following separation.8
The new entitlement 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 would assist these
employees to retain employment and the financial and personal benefits that come with
employment, particularly during the difficult circumstances of experiencing family and
domestic violence.
Right to privacy and reputation
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy. Privacy guarantees a right to secrecy from the publication of
personal information. For interference with privacy not to be arbitrary, it must be in
accordance with the provisions, aims and objectives of the ICCPR and should be reasonable
in the particular circumstances. Reasonableness in this context incorporates notions of
proportionality to the end sought and necessity in the circumstances.
The Bill would provide that in order to access the new entitlement, an employee must provide
to their employer notice of the taking of the leave and, if required by the employer, evidence
that would satisfy a reasonable person that the leave is taken for the prescribed purpose.
Requiring an employee to provide this information engages the right to privacy. The purpose
of the notice requirement is to assist employers to make arrangements to accommodate an
employee's absence from the workplace and the purpose of the evidence requirement is to
ensure the entitlement is properly accessed. Allowing for relevant information to be provided
to an employer is a suitable means of meeting these purposes.
4
Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19 (11th
Session, 1992).
5
4 yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494 [49].
6
4 yearly review of modern awards - Family and Domestic Violence Leave [2018] FWCFB 1691 [102].
7
Ibid [95].
8
Ibid [97].
House of Representatives viii Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Statement of Compatibility with Human Rights
There is no alternative means of administering the leave entitlement that is reasonably
practicable and has a less restrictive effect on the right to privacy. The Bill is modelled
closely on the Model Clause, which was developed by the Commission and is in a form
agreed by employee and employer representative bodies. As such, the least restrictive form of
providing for the administration of the leave entitlement has been assured.
The restriction on the right to privacy that is needed to effectively administer the leave
entitlement is adequate in its balance. The restriction is limited by the Bill also requiring
employers to take reasonable steps to ensure that any information collected by an employer is
treated confidentially. Employers would also be bound by any existing obligations in privacy
legislation in relation to the disclosure of personal information. The notice and evidence
requirements are consistent with those already provided for in the Act in respect of other
leave entitlements.
Conclusion
This Bill is compatible with human rights because it advances the protection and enjoyment of
human rights.
Minister for Jobs and Industrial Relations, the Hon Kelly O'Dwyer MP
House of Representatives ix Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Notes on Clauses
NOTES ON CLAUSES
In these notes on sections, the following abbreviations are used:
Act Fair Work Act 2009
Bill Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018
Commission Fair Work Commission
NES National Employment Standards
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
Clause 3 - Schedules
3. Clause 3 of the Bill provides that legislation that is specified in a Schedule to the Bill
is amended or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Bill has effect according to its terms.
House of Representatives 1 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
SCHEDULE 1 - AMENDMENTS
Overview
4. Schedule 1 inserts new Subdivision CA of Division 7 of Part 2-2 into the Act. This
new subdivision inserts a new entitlement in the NES to five days of unpaid family and
domestic violence leave in a 12 month period. The new entitlement is 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, but does not accumulate year to year. The
entitlement is not pro-rated for part-time or casual employees.
Fair Work Act 2009
Item 1 - Section 12
5. Section 12 of the Act contains the Dictionary. Item 1 inserts three new definitions into
the Dictionary:
'close relative';
'family and domestic violence'; and
'unpaid family and domestic violence leave'.
6. The signpost definitions provided for 'close relative' and 'family and domestic
violence' are required because of new section 106B inserted by item 5, which contains these
two new definitions.
7. The new definition of 'unpaid family and domestic violence leave' defines the term to
mean unpaid family and domestic violence leave to which a national system employee is
entitled under new section 106A.
Item 2 - Subsection 17(2) (note)
8. Section 17 of the Act defines the meaning of 'child of a person'. The note under
subsection 17(2) provides an example of how the provision operates for leave entitlements in
relation to immediate family under Division 7 of Part 2-2 (which deals with personal/carer's
leave and compassionate leave).
9. Item 2 is consequential to items 4 and 5. It omits reference to 'and compassionate
leave' in the note and substitutes ', compassionate leave and unpaid family and domestic
violence leave', reflecting the inclusion of the new family and domestic violence leave
entitlement.
Item 3 - Paragraph 61(2)(e)
10. Subsection 61(2) of the Act lists the matters to which the NES relates.
Paragraph 61(2)(e) refers to 'personal/carer's leave and compassionate leave (Division 7)'.
11. Item 3 is consequential to item 4. It omits the reference to 'and compassionate leave'
and substitutes ', compassionate leave and unpaid family and domestic violence leave' which
will be the new heading for Division 7.
House of Representatives 2 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
Item 4 - Division 7 of Part 2-2 (heading)
12. Item 4 is consequential to item 5. Item 4 amends the existing heading, 'Division 7 -
Personal/carer's leave and compassionate leave', for Division 7 of Part 2-2 of the Act, by
omitting 'and compassionate leave', and substituting ', compassionate leave and unpaid
family and domestic violence leave', to reflect the inclusion of family and domestic violence
leave in Division 7.
Item 5 - After Subdivision C of Division 7 of Part 2-2
13. Item 5 inserts the new Subdivision CA - Unpaid family and domestic violence leave,
as part of Division 7 of Part 2-2 of the Act.
Section 106A - Entitlement to unpaid family and domestic violence leave
14. New section 106A contains the new entitlement to unpaid family and domestic
violence leave.
15. New subsection 106A(1) specifies that the entitlement consists of 5 days of unpaid
family and domestic violence leave in a 12 month period.
16. New paragraph 106A(2)(a) provides that unpaid family and domestic violence leave
is available in full at the start of each 12 month period of the employee's employment, and
new paragraph 106A(2)(b) provides that the entitlement does not accumulate from year to
year. This means that the new entitlement does not accrue progressively, but rather an
employee gains the full benefit of the entitlement at the beginning of their employment,
which resets to the full five days (if any unpaid family and domestic violence leave has been
taken) with each 12 month period of employment.
17. New paragraph 106A(2)(c) provides that unpaid family and domestic violence leave
is available in full to part-time and casual employees. This means that the new entitlement
applies equally to all types of employees; i.e. there are no special or pro-rata arrangements or
exceptions to modify the entitlement in relation to part-time or casual employees.
18. New subsection 106A(3) clarifies the operation of subsection 106A(2) in relation to
non-permanent employees who may be engaged and re-engaged multiple times by the same
employer.
19. Subsection 106A(3) provides that for the purposes of subsection 106A(2), if an
employee is employed by a particular employer as a casual employee, or for a specified
period of time, for a specified task or for the duration of a specified season, the start of the
employee's employment is taken to be the start of the employee's first engagement with that
employer.
20. The effect of subsection 106A(3) in relation to casual employees is to provide that
while the nature of casual employment means that the employee is re-engaged with each shift
of work, they will only get five days of unpaid family and domestic violence leave in a
12 month period with that employer, not five days per engagement.
21. Similarly, in relation to employees who are employed for a specified period of time,
for a specified task or for the duration of a specified season, subsection 106A(3) means that
these employees will get five days of unpaid family and domestic violence leave in a
House of Representatives 3 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
12 month period which will reset on the anniversary of their first engagement with that
employer, not a new five day entitlement with each re-engagement.
22. Subsection 106A(4) provides that an employee may take unpaid family and domestic
violence leave as a single continuous five day period; or as separate periods of one or more
days each; or as any separate periods to which the employee and the employer agree,
including periods of less than one day.
23. Subsection 106A(5) is an avoidance of doubt provision to make it clear that nothing in
section 106A prevents an employee and their employer from agreeing that the employee may
take more than five days of unpaid leave to deal with the impact of family and domestic
violence.
Section 106B - Taking unpaid family and domestic violence leave
24. New section 106B provides for when an employee can access unpaid family and
domestic violence leave, and includes definitions of the terms 'family and domestic violence'
and 'close relative'.
25. New subsection 106B(1) provides that an employee may take unpaid family and
domestic violence leave if:
the employee is experiencing family and domestic violence (paragraph 106B(1)(a));
and
the employee needs to do something to deal with the impact of the family and
domestic violence (paragraph 106B(1)(b)); and
it is impractical for the employee to do that thing outside the employee's ordinary
hours of work (paragraph 106B(1)(c)).
26. New note 1 to subsection 106B(1) indicates that examples of actions, by an employee
who is experiencing family and domestic violence, that could be covered by paragraph (b)
include arranging for the safety of the employee or a close relative (including relocation),
attending urgent court hearings, or accessing police services. The examples included in this
note are not a comprehensive list of actions covered by paragraph (b).
27. New note 2 to subsection 106B(1) indicates that the notice and evidence requirements
in section 107 of the Act must be complied with.
28. New subsection 106B(2) defines 'family and domestic violence' as 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.
29. New subsection 106B(3) defines a 'close relative' of the employee as a person who:
is a member of the employee's immediate family; or
House of Representatives 4 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
is related to the employee according to Aboriginal or Torres Strait Islander kinship
rules.
30. The new note to subsection 106B(3) indicates that the term 'immediate family', which
is used in the definition of 'close relative', is defined in section 12 of the Act. Section 12
defines 'immediate family' to mean: a spouse, de facto partner, child, parent, grandparent,
grandchild or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of
a spouse or de facto partner of the employee. Under section 12 of the Act, each of the terms
'spouse' and 'de facto partner' also includes a former spouse and a former de facto partner
respectively. A former de facto partner of an employee, whether living at the same residence
as the employee or not, is still covered by the definition of close relative.
Section 106C - Confidentiality
31. New section 106C concerns the confidentiality of information obtained by an
employer relating to an employee's notice given or evidence provided under section 107 of
the Act for the taking of leave under new section 106B.
32. New subsection 106C(1) provides that employers must take steps to ensure
information concerning any notice or evidence an employee has given under section 107 of
the Act of the employee taking leave under new Subdivision CA is treated confidentially, as
far as it is reasonably practicable to do so.
33. New subsection 106C(2) contains two exceptions to subsection 106C(1), providing
that nothing in subsection 106C(1) prevents an employer from disclosing information
provided by an employee if the disclosure is required by an Australian law, or is necessary to
protect the life, health or safety of the employee or another person.
34. The note to new section 106C alerts the reader to the fact that information covered by
section 106C that is personal information may also be regulated under the Privacy Act 1988.
Section 106D - Operation of unpaid family and domestic violence leave and leave for victims
of crime
35. New section 106D provides how the new family and domestic leave entitlement in
new section 106A interacts with laws of a State or a Territory that provide for leave for
victims of crime.
36. Subsections 106D(1) and (2) deal with this interaction in relation to State or Territory
entitlements to leave for victims of crime that overlap with the new family and domestic
violence leave entitlement provided in Subdivision CA. Section 26 of the Act generally
excludes the operation of State or Territory industrial laws, with some exceptions. Section 27
of the Act provides that one of those exceptions is a law of a State or Territory that deals with
the subject matter of 'leave for victims of crime'.
37. New subsection 106D(1) provides that new Subdivision CA of Division 7 of Part 2-2
(unpaid family and domestic violence leave) does not exclude or limit the operation of a law
of a State or Territory to the extent that it provides leave for victims of crime. This means that
if a State or Territory provides for leave for victims of crime, new Subdivision CA does not
exclude or limit a national system employee's access to that State or Territory entitlement.
House of Representatives 5 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
38. New subsection 106D(2) provides that if an employee who is entitled, under a law of
a State or Territory, to leave for victims of crime is also entitled to leave under
Subdivision CA of Division 7, that law applies in addition to Subdivision CA. This means
that where an employee is entitled to access both the new unpaid family and domestic
violence leave under Subdivision CA, and a State or Territory leave for victims of crime
entitlement, the employee can access both types of leave separately and in full.
39. New subsection 106D(3) deals with interaction with State laws in relation to the
referrals of legislative authority made by certain States. Subsection 106D(3) provides that a
person who is only a national system employee because of sections 30C or 30M of the Act is
entitled to leave under Subdivision CA of Division 7 only to the extent that the leave would
not constitute leave for victims of crime. In relation to these employees, 'leave for victims of
crime' is an excluded subject matter from the referrals of legislative authority made by
Victoria, New South Wales, Queensland, Tasmania and South Australia that bring these
employees into the national system. New subsection 106D(3) makes clear that while new
Subdivision CA of Division 7 may overlap with the subject matter 'leave for victims of
crime', to the extent that employees who are national system employees only because of
sections 30C or 30M are not accessing the leave as victims of crime, they may still access the
new entitlement in Subdivision CA.
106E - Entitlement to days of leave
40. New section 106E provides that what constitutes a day of leave for the purposes of
new Subdivision CA is taken to be the same as what constitutes a day of leave for the
purposes of section 85 and Subdivisions B and C.
41. New section 106E makes clear that what constitutes a day of leave for the purposes of
the new entitlement to family and domestic violence leave is designed to be the same as what
constitutes a day of leave for the purposes of pre-adoption leave (in section 85), unpaid
carer's leave (in Subdivision B of Division 7) and compassionate leave (in Subdivision C of
Division 7).
Item 6 -At the end of subsection 107(3)
42. Section 107 of the Act provides the notice and evidence requirements for employees
taking leave under Division 7 of Part 2-2.
43. Item 6 is consequential to item 5, and includes a new paragraph to subsection 107(3),
providing that if an employee has given his or her employer notice of the taking of unpaid
family and domestic violence leave under the new Subdivision CA and has met the
requirement specified in paragraph 106B(1)(a), then the employee must, if required by the
employer, give the employer evidence that would satisfy a reasonable person that the leave is
taken for the purpose specified in paragraph 106B(1)(b) and the requirement specified in
paragraph 106B(1)(c) is met. Depending on the circumstances, such evidence may include a
document issued by a police service, a court or a family violence support service, or a
statutory declaration.
44. The Bill does not amend subsection 107(5) of the Act, which provides that a modern
award or enterprise agreement may include evidence requirements in relation to paid
personal/carer's leave, unpaid carer's leave or compassionate leave. It is not intended to
include unpaid family and domestic violence leave in this subsection.
House of Representatives 6 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
Item 7 - In the appropriate position in Schedule 1
45. Item 7 inserts a new Part 8 - Amendments made by the Fair Work Amendment
(Family and Domestic Violence Leave) Act 2018, containing new clauses 39 and 40 in
Schedule 1 to the Act.
Clause 39 - Entitlement to unpaid family and domestic violence leave
46. New clause 39 is a transitional application provision that specifies how an employee
who is employed at the time the new entitlement in Subdivision CA commences gains the
benefit of the entitlement from that commencement date.
47. New subclause 39(1) provides that the new Subdivision CA of Division 7 of Part 2-2,
as inserted by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018,
applies in relation to an employee whose employment started before the commencement of
that Act as if the period:
starting on that commencement; and
ending on the first day after that commencement that is an anniversary of the day the
employment started;
were a 12 month period.
48. The effect of subclause 39(1) is that for employees employed at the time the new
entitlement commences, they will gain the full benefit of the five days of unpaid leave from
the date of commencement, rather than having to wait until the anniversary of the start of
their employment as the entitlement is expressed in paragraph 106A(2)(a). After
commencement of the amendments containing the new entitlement, the five days of
entitlement will then reset on the day of the anniversary of when an employee's employment
started. For example, an employee who started employment with their employer on
10 April 2018 will gain the full five day entitlement upon commencement of the new
provisions, and that entitlement will thereafter reset on 10 April each year of their
employment with that employer.
49. New subclause 39(2) provides that for the purposes of this clause, if an employee is
employed by a particular employer:
as a casual employee; or
for a specified period of time, for a specified task or for the duration of a specified
season;
the start of the employee's employment is taken to be the start of the employee's first
employment with that employer.
50. The effect of subclause 39(2) is that the transitional application arrangement provided
for in subclause 39(1) applies to casual employees and employees who are employed for a
specified period of time, for a specified task or for the duration of a specified season as
though the start of their first employment with a particular employer is taken to be the start of
the employee's employment with that employer from which time the entitlement resets. This
is the same approach taken for these employees as in subsection 106A(3).
House of Representatives 7 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018
Schedule 1 - Amendments
Clause 40 - Resolving uncertainties and difficulties about interaction between enterprise
agreements and unpaid family and domestic violence leave
51. New clause 40 provides a mechanism for employers, employees or employee
organisations covered by an enterprise agreement to resolve any uncertainties or difficulties
between the agreement and new Subdivision CA containing the new unpaid family and
domestic violence leave entitlement. This mechanism applies to enterprise agreements that
were made under section 182 of the Act before the commencement of the new entitlement.
52. Subclause 40(1) provides that, on application by an employer, employee or employee
organisation covered by an enterprise agreement that was made before the commencement of
new Subdivision CA, the Commission may make a determination varying the agreement to:
resolve an uncertainty or difficulty relating to the interaction between the agreement
and the following (the unpaid family and domestic violence leave provisions):
i. the provisions of Subdivision CA of Division 7 of Part 2-2;
ii. section 107 of the Act, to the extent that it relates to taking leave under that
Subdivision; or
make the agreement operate effectively with the unpaid family and domestic violence
leave provisions.
53. Subclause 40(2) provides that a variation of an enterprise agreement under this clause
operates from the day specified in the determination, which may be a day before the
determination is made.
54. New clause 40 acknowledges that existing enterprise agreements may already provide
employees with different forms of leave or an analogous entitlement that is accessible when
an employee is experiencing family and domestic violence. Terms in existing enterprise
agreements may, for example, use different definitions or operate differently to the new
unpaid family and domestic violence leave entitlement, and therefore it may not be clear how
the terms of those agreements will interact with the new entitlement. New clause 40 provides
a mechanism for applications to be made to the Commission to resolve these questions.
House of Representatives 8 Fair Work Amendment (Family and Domestic
Violence Leave) Bill 2018