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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK AMENDMENT (PAID FAMILY AND DOMESTIC VIOLENCE
LEAVE) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Employment and Workplace Relations, the Honourable Tony Burke MP)
FAIR WORK AMENDMENT (PAID FAMILY AND DOMESTIC VIOLENCE
LEAVE) BILL 2022
GENERAL OUTLINE
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill)
would amend the Fair Work Act 2009 (the Act) to provide for ten days of paid family and
domestic violence leave in the National Employment Standards (NES). This would replace
the existing entitlement in the NES to five days of unpaid family and domestic violence
leave.
Family and domestic violence has devastating impacts on the Australian community. Family
and domestic violence is not just a criminal justice or social issue, but an economic and a
workplace issue. The financial impacts of family and domestic violence can be significant,
and, in many circumstances, those affected are unable to take steps to leave violent situations
without risking unemployment, financial hardship or homelessness. The COVID-19
pandemic has seen an increase in the prevalence and severity of family and domestic
violence in Australia.The financial security provided by secure employment can offer a
pathway out of violent situations, with consequential benefits for families, employers and the
national economy. Paid family and domestic violence leave would help employees
experiencing violence to remain in work, maintain their financial security and access
relevant services.
This Bill would enhance the existing NES leave entitlement for employees experiencing
family and domestic violence by providing for paid leave and doubling the amount of leave
that can be taken in a 12 month period of employment.
The improved entitlement in the Bill would:
• provide ten days of paid family and domestic violence leave in a 12 month period for
full-time, part-time and casual employees;
• provide for employees to access paid family and domestic violence leave at their full
rate of pay for the hours they would have worked had they not taken the leave, to
minimise the financial impact of family and domestic violence;
• extend the definition of family and domestic violence to include conduct of a current
or former intimate partner of an employee, or a member of an employee's household;
and
• extend the full paid entitlement to all employees when the International Labour
Organisation Convention (No. 190) concerning Violence and Harassment comes into
force for Australia.
The provision of ten days' paid family and domestic violence leave would also bring the
NES into alignment with the practices of many Australian employers who already provide
paid family and domestic violence leave through enterprise agreements or workplace
policies.
To provide time for payroll and other necessary adjustments, the new paid entitlement would
commence on 1 February 2023 for employees employed other than by a small business
1
employer. To recognise the unique needs of small business with limited human resources, an
additional transition period of six months would be provided for employers who meet the
definition of small business employer in the Act as at 1 February 2023.
FINANCIAL IMPACT
The Bill has no financial impact.
REGULATION IMPACT
The Office of Best Practice Regulation has acknowledged that the Fair Work Commission's
Review of Family and Domestic Violence Leave in modern awards is equivalent to a
Regulation Impact Statement (reference number OBPR22-02405). The Commission's
independent review can be accessed at and supporting
documentation, such as the parties' submissions, transcripts and correspondence, can be
accessed at .
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
THE FAIR WORK AMENDMENT (PAID FAMILY AND DOMESTIC VIOLENCE
LEAVE) BILL 2022
1. 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
2. This Bill would amend the Fair Work Act 2009 to introduce an entitlement to ten days
of paid family and domestic violence leave in the NES. This new paid entitlement would
replace the existing entitlement in the NES to five days of unpaid family and domestic
violence leave.
3. The new entitlement would operate in much the same way as the existing unpaid
family and domestic violence leave entitlement. An employee who is experiencing family
and domestic violence would be able to take the leave if they needed to do something to deal
with the impact of family and domestic violence and it was impractical to do that thing
outside their work hours. 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 paid family and domestic violence leave would also be protected from
unlawful adverse action under the existing general protections provisions of the Act.
4. The new entitlement would also make a number of improvements to the existing
unpaid entitlement. This not only includes providing for paid leave and doubling the amount
of leave an employee can take in a 12 month period, but also extending the definition of
family and domestic violence to include conduct of a current or former intimate partner of an
employee, or a member of an employee's household. The Bill would also extend the full
entitlement to paid family and domestic violence leave to all employees, including casuals, in
reliance on the external affairs power once the International Labour Organisation (ILO)
Convention (No. 190) concerning Violence and Harassment comes into force for Australia.
The existing unpaid leave entitlement is not currently available to non-national system
employees and is not available in full to some national system employees.
5. The amendments in the Bill would assist employees affected by family and domestic
violence to be paid and remain in continuous employment which provides financial security,
independence, social networks and support, and increased self-esteem.
Human rights implications
6. The Bill engages the following human rights:
a. 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);
b. 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);
c. the right to privacy and reputation under Article 17 of the ICCPR; and
d. the right for children to be protected from all forms of physical or mental violence
under Article 19 of the Convention on the Rights of the Child (CRC).
7. When the ILO Convention (No. 190) concerning Violence and Harassment comes
into force for Australia, amendments made by the Bill would engage Australia's commitment
under that Convention to mitigate the effects of domestic violence in the world of work.
Right to work and to just and favourable conditions of work
8. 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.
9. Family and domestic violence can be a significant impediment to workforce
participation. Under the existing arrangements in the Act, employees who need time off work
because they are experiencing family and domestic violence face financial detriment as they
are only able to access an unpaid leave entitlement with consequential loss of expected
earnings. Access to a paid leave entitlement would reduce the impact of family and domestic
violence by enabling employees dealing with the impact of that violence to maintain both
their employment and their financial security.
10. Article 7 of the ICESCR requires that State Parties to the Covenant recognise the right
of everyone to the enjoyment of just and favourable working conditions.
11. The Bill would further promote this right by doubling the amount of leave an
employee can take in a 12 month period to deal with family and domestic violence and
ensuring the leave is paid at a rate that ensures the employee receives the remuneration they
would have received had they not taken the leave, provided it can be calculated with a
reasonable degree of certainty. While many employers already provide paid family and
domestic violence leave, the Bill would grant all employees a guaranteed minimum
entitlement, enabling them to take time off work without forfeiting pay. The Bill would also
extend the definition of family and domestic violence to include behaviour of a current or
former intimate partner of an employee, or a member of an employee's household.
Right of women not to be discriminated against based on gender
12. The CEDAW provides that in relation to discrimination against women State Parties
must:
a. ensure the effective protection of women against acts of discrimination
(Article 2(c));
b. ensure the full development and advancement of women (Article 3); and
c. 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).
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13. Article 26 of the ICCPR requires State laws to guarantee equal and effective
protection against discrimination on a number of grounds, including sex.
14. While family and domestic violence can affect anyone, it is widely recognised as a
form of gendered-violence and predominantly affects women.
15. Paid family and domestic violence leave would positively engage the rights of women
not to be discriminated against by enabling them to take time off work to deal with the
impacts of family and domestic violence, without losing financial security as a result. The
new entitlement would provide financial support to assist employees to manage the
consequences of family and domestic violence and engage in processes aimed at preventing
future violence, such as attending counselling sessions and other support services.
Right to privacy and reputation
16. 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.
17. The Bill would positively engage this right by maintaining the existing confidentiality
requirements that apply to information provided by an employee when providing notice and
evidence to access family and domestic violence leave.
18. The notice and evidence requirements that would apply to paid family and domestic
violence leave are consistent with those already provided for in the Act in respect of other
leave entitlements, including unpaid family and domestic violence leave.
Right of children to be protected from all forms of physical or mental violence
19. Article 19 of the CRC provides that State Parties must take appropriate legislative,
administrative, social and educational measures to protect children from all forms of physical
or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any
other person who has the care of the child, where child refers to anyone below the age of 18.
20. Family and domestic violence affects not only those who suffer it, but also the
children who are exposed to it. Financial insecurity can be a key obstacle to leaving violent
relationships, particularly if there are children to provide for.
21. The 2016 Personal Safety Survey from the Australian Bureau of Statistics found that
10 per cent of men and 13 per cent of women witnessed violence towards their mother by a
partner before the age of 15.1 Further, around four per cent of men and women respectively
witnessed violence towards their father by a partner before the age of 15. Of those who
experienced violence by a previous partner, 68 per cent of women and 60 per cent of men
1
ABS, Personal Safety, Australia: Statistics for Family, Domestic, Sexual Violence, Physical Assault, Partner
Emotional Abuse, Child Abuse, Sexual Harassment, Stalking and Safety (Report, 8 November 2017) Research
Reference List No.102 .
3
who had children in their care when they experienced violence reported that the violence was
seen or heard by children.
22. The Bill would promote the protection of children by providing financial support to a
parent experiencing family and domestic violence to assist them to take steps to deal with that
violence, including by arranging for their own and their children's safety. The Bill would also
promote the protection of children who are of working age and who are experiencing family
and domestic violence by providing an entitlement to take time off work to make
arrangements to lessen the impacts of that violence, or prevent future violence, without losing
income.
Conclusion
23. This Bill is compatible with human rights because it advances the protection and
enjoyment of human rights.
Minister for Employment and Workplace Relations, the Hon Tony Burke MP
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NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
Act Fair Work Act 2009
Bill Fair Work Amendment (Paid Family and Domestic Violence Leave)
Bill 2022
FWC Fair Work Commission
NES National Employment Standards
Clause 1--Short title
24. This is a formal provision specifying the short title.
Clause 2--Commencement
25. The table in this clause sets out when the provisions of the Bill commence. Schedule 1
to the Bill, which would set out the main amendments, would commence on 1 February 2023.
This is intended to give employers sufficient time before the commencement of the new
entitlement to make necessary administrative updates, such as to payroll software.
26. Schedule 2 to the Bill would extend the entitlement to paid family and domestic
violence leave to certain classes of employee in reliance on the external affairs power once
the International Labour Organisation (ILO) Convention (No. 190) concerning Violence and
Harassment comes into force for Australia. However, Schedule 2 will not come into force at
all if the Convention does not come into force within two years of Schedule 1 commencing
(i.e. by 1 February 2025).
Clause 3--Schedules
27. Clause 3 of the Bill would provide 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.
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SCHEDULE 1--MAIN AMENDMENTS
Overview
28. The amendments in Schedule 1 would replace the entitlement to five days of unpaid
family and domestic violence leave in a 12 month period in the NES with a new entitlement
to ten days of paid leave. The new paid entitlement would be available to employees of all
types, including casual employees, and would be available in full at the beginning of each
12 month period of the employee's employment, but does not accumulate year to year.
Fair Work Act 2009
Item 1--Section 12
29. Section 12 of the Act contains the Dictionary. Item 1 would insert a new definition of
'paid family and domestic violence leave' into the Dictionary with a cross reference to
section 106A.
Item 2--Section 12 (definition of unpaid family and domestic violence leave)
30. Item 2 would remove the existing definition of 'unpaid family and domestic violence
leave' from the Dictionary.
Item 3--Section 17 (note)
Item 4--Paragraph 61(2)(e)
Item 5--Division 7 of Part 2-2 (heading)
Item 7--Subdivision CA of Division 7 of Part 2-2 (heading)
Item 8--Section 106A (heading)
Item 10--Subsection 106A(2)
Item 11--Subsection 106A(4)
Item 14--Section 106B (heading)
Item 15--Section 106B(1)
Item 20--Section 106D (heading)
Item 21--Paragraph 107(3)(d)
31. These items would make technical amendments to replace the word 'unpaid' with the
word 'paid' to reflect the changed nature of the entitlement to family and domestic violence
leave.
Item 6--Section 98
32. Item 6 would repeal section 98 of the Act and substitute a new provision.
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33. New subsection 98(1) would replicate the rule in the existing section 98.
34. New subsection 98(2) would provide an additional rule that, where an employee takes
a period of paid family and domestic violence leave, the employee is taken not to be on paid
personal/carer's leave for that period.
Item 9--Subsection 106A(1)
Item 12--Paragraph 106A(4)(a)
Item 13--Subsection 106A(5)
35. These items would make technical amendments to reflect the increase in the
entitlement to family and domestic violence leave from five days of unpaid leave to ten days
of paid leave.
Item 16--Paragraph 106B(1)(c)
36. Section 106B currently provides rules governing when an employee can take unpaid
family and domestic violence leave. Existing subsection 106B(1) provides that an employee
experiencing family and domestic violence can take family and domestic violence leave if the
employee needs to do something to deal with the impact of that violence and it is impractical
for the employee to do that thing outside the employee's 'ordinary hours of work'.
37. Item 16 would amend subsection 106B(1) to clarify that an employee may take the
paid leave entitlement if it is impractical for them to do something to deal with family and
domestic violence during their work hours, which may not be the same as their ordinary
hours.
Item 17--Subsection 106B(1) (note 1)
38. Item 17 would expand Note 1 to subsection 106B(1) to illustrate some further
non-exhaustive examples of actions taken by an employee to 'deal with' family and domestic
violence.
39. The examples of dealing with family and domestic violence added to the note are
attending counselling and attending appointments with medical, financial or legal
professionals. The new note also makes clear that attending court hearings is an example of
dealing with family and domestic violence, whether or not the hearing is urgent.
Item 18--Subsection 106B(2)
40. Item 18 would expand the definition of family and domestic violence to include
violent, threatening or other abusive behaviour by a current or former intimate partner of an
employee, or a member of the employee's household, in addition to a close relative.
41. This will ensure an employee can access paid family and domestic violence leave if
they are subjected to violence, or other threatening or abusive behaviour, from an intimate
partner who does not meet the definition of de facto partner under the Act, for example,
because the employee does not live with the person on a genuine domestic basis. An intimate
partner relationship would include, for example, an ongoing sexual relationship, regardless of
whether the employee is co-habiting with the violent person.
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42. A member of an employee's household would include any person living in the same
residence as the employee, such as extended family members or a housemate the employee is
not related to.
43. These amendments recognise that Australians are increasingly living in a more
diverse range of non-traditional living situations.
Item 19--After section 106B
44. Item 19 would insert new section 106BA into the Act after section 106B.
Section 106BA--Payment for paid family and domestic violence leave
45. New section 106BA would outline payment arrangements for the new entitlement to
ten days paid family and domestic violence leave.
46. New paragraph 106BA(1)(a) would entitle an employee other than a casual employee
who takes a period of paid family and domestic violence leave to be paid at the employee's
full rate of pay worked out as if the employee had not taken the period of leave.
47. New paragraph 106BA(1)(b) would entitle a casual employee who takes a period of
paid family and domestic violence leave to be paid at the employee's full rate of pay worked
out as if the employee had worked the hours in the period for which the employee was
rostered.
48. The words 'hours in the period for which the employee was rostered' are intended to
take their ordinary meaning. This would include any situation where the employer makes
available, by any means, a list of shifts to be undertaken by casual employees in advance. To
avoid doubt in less formal rostering scenarios, new subsection 106BA(2) would clarify that,
without limiting the ordinary meaning of rostered hours, an employee is taken to have been
rostered to work hours in a period if the employee has accepted an offer by the employer of
work for those hours. The offer and/or acceptance can, but need not, be in writing or by
phone.
49. 'Full rate of pay' is defined in section 18 of the Act as the rate of pay payable to the
employee, including incentive-based payments and bonuses, loadings, monetary allowances,
overtime or penalty rates and any other separately identifiable amounts. The intention is that
employees taking paid family and domestic violence leave will receive the same
remuneration they would have received had they not taken the leave, as far as possible.
Employers would be required to pay employees in relation to a period of paid family and
domestic violence leave amounts the employee would otherwise have earned, provided those
amounts can be identified and calculated with a reasonable degree of certainty. Conversely,
for irregular payments or amounts contingent upon certain events that may or may not have
happened during the employee's rostered hours, an employer may not be liable to pay an
employee those amounts.
a. For example, an employee would be entitled to be paid overtime rates where they
were rostered in advance to work overtime on a day they take paid family and
domestic violence leave. However, an employee may not be entitled to be paid a
travel allowance in relation to a period of paid family and domestic violence leave
if the calculation of the allowance was based on the distance travelled, where the
8
distance that would have been travelled during the period the employee took the
leave cannot be ascertained.
50. 'Casual employee' is defined in section 15A of the Act.
51. The intention of new subsections 106BA(1) and (2) is to ensure that employees taking
a day of paid family and domestic violence leave receive the same remuneration for the day
as they would have received but for taking leave. This is intended to minimise the financial
impact of family and domestic violence.
52. New subsection 106BA(3) makes clear that a casual employee could take a period of
paid family and domestic violence leave that does not include hours for which the employee
is rostered to work. In this circumstance, the employer would not be required to pay the
employee for the un-rostered hours. This ensures that a casual employee who is not able to
make themselves available for a shift, and who has not been rostered for a shift, cannot be
adversely treated because they need to do something to deal with family and domestic
violence during that period. This is because the employee is able to exercise, or propose to
exercise, their workplace right to take paid family and domestic violence leave and is thereby
protected from unlawful adverse action.
Illustrative example--payment and rostered hours
Prisha is an early childhood teacher employed as a casual employee. Prisha's employer
usually calls her every Monday morning to offer her shifts for the week. One Monday
morning, Prisha's employer calls her and offers her shifts on Wednesday, Thursday and
Friday. Prisha tells her employer over the phone that she is available to work on Wednesday
and Thursday, but is unsure about Friday and will get back to her employer later in the week.
They agree Prisha will work the Wednesday and Thursday shifts, and that the employer will
wait to hear from Prisha about her availability to work on Friday.
On Tuesday, Prisha experiences family and domestic violence. For the rest of the week,
Prisha is unable to work as she is doing things to deal with the impact of that violence and it
is impractical for Prisha to do those things during her work hours.
Prisha is entitled to take paid family and domestic violence leave and be paid her full rate of
pay for the hours she agreed to work on the phone with her employer on Wednesday and
Thursday.
Prisha was not rostered for work on Friday. Prisha could choose to take a day of paid family
and domestic violence leave on Friday, but her employer is not required to pay Prisha in
relation to that period.
If Prisha does choose to access paid family and domestic violence leave on Friday, she will
be protected from unlawful adverse action because she exercised her workplace right to take
paid family and domestic violence leave.
Item 22--In the appropriate position in Schedule 1
53. Item 22 would insert a new Part 12--Amendments made by the Fair Work
Amendment (Paid Family and Domestic Violence Leave) Act 2022, containing new clauses
51 to 53 in Schedule 1 to the Act.
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Clause 51--Definitions
54. New clause 51 would insert three new definitions that apply to new Part 12 of
Schedule 1 to the Act:
a. 'amending Act' would mean the Fair Work Amendment (Paid Family and
Domestic Violence Leave) Act 2022;
b. 'pre-commencement enterprise agreement' would mean an enterprise agreement
made before the commencement of Schedule 1 to the amending Act (i.e. before
1 February 2023); and
c. 'small business employee' would mean an employee whose employer was, on the
day Schedule 1 to the amending Act commences (i.e. on 1 February 2023), a small
business employer (as defined by section 23 of the Act) (whether or not the
employee was employed by the employer on that day).
Clause 52--Entitlement to paid family and domestic violence leave
55. New clause 52 is a transitional application provision that would specify how and
when an employee gains the benefit of the new NES paid family and domestic violence leave
entitlement, based on whether or not they are a small business employee.
56. New subclauses 52(1) and 52(2) would provide arrangements for employees who are
not small business employees. The effect of these subclauses is that a national system
employee, other than a small business employee, who is employed at the time Schedule 1 to
the amending Act commences (i.e. on 1 February 2023) would gain ten days of paid family
and domestic violence leave from that date, rather than having to wait until the anniversary of
the start of their employment as the entitlement is expressed in paragraph 106A(2)(a). The
entitlement to ten days of paid leave would then reset on the day of the anniversary of when
an employee's employment started.
a. For example, a national system employee other than a small business employee
who started employment with their employer on 11 October 2022 would gain ten
days of paid family and domestic violence leave on 1 February 2023, and that
entitlement would thereafter reset on 11 October each year of their employment
with that employer.
57. Employees who are not small business employees and who commence employment
on or after 1 February 2023 will also have access to ten days paid family and domestic
violence leave from the day they commence employment in accordance with
paragraph 106A(2)(a) of the Act and the commencement arrangements for the amending Act.
58. New subclauses 52(3) and 52(4) would provide arrangements for small business
employees. The effect of these subclauses is that small business employees will not gain the
benefit of paid family and domestic violence leave until six months after Schedule 1 to the
amending Act commences (i.e. on 1 August 2023). This recognises the unique position of
small business employers and provides them with additional time to make necessary
arrangements to facilitate a new paid leave entitlement, specifically the lack of human
resource and payroll support.
10
59. A small business employee who is employed on 1 August 2023 would gain the full
benefit of the ten days of paid family and domestic violence leave from that date, rather than
having to wait until the anniversary of the start of their employment as the entitlement is
expressed in paragraph 106A(2)(a). The entitlement to ten days of paid leave would then
reset on the day of the anniversary of when an employee's employment started.
60. Between 1 February 2023 and 31 July 2023, small business employees will continue
to be able to access the existing NES entitlement to five days unpaid family and domestic
violence leave.
a. For example, a small business employee who started employment with their
employer on 11 October 2022 would continue to have access to the NES unpaid
family and domestic violence leave entitlement up to and including 31 July 2023.
On 1 August 2023, the employee would gain ten days paid family and domestic
violence leave and that entitlement would thereafter reset on 11 October each year
of their employment with that employer.
61. Small business employees who commence employment on or after 1 February 2023
would also have access to the NES unpaid family and domestic violence leave entitlement
until they gain the benefit of the entitlement to ten days paid family and domestic violence
leave on 1 August 2023.
62. The entitlement to ten days of paid leave conferred on 1 February 2023 or
1 August 2023 (as relevant) would apply regardless of whether a person has used any of their
existing entitlement to five days of unpaid family and domestic violence leave.
63. New subclause 52(5) provides arrangements for casual employees, or employees
employed for a specified period of time, for a specified task or for the duration of a specified
season. The effect of this subclause is that the transitional application arrangements provided
for in subclauses 52(1) to 52(4) would apply to these types of employees 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.
Clause 53--Resolving interactions between enterprise agreements and paid family and
domestic violence leave
64. New clause 53 would provide a mechanism for parties to a pre-commencement
enterprise agreement to resolve any uncertainty about the interaction between the agreement
and the entitlement to paid family and domestic violence leave provided for by
Subdivision CA of Division 7 of Part 2-2 as amended by Schedule 1 to the amending Act (the
NES entitlement). The existing rules in section 55 of the Act relating to the interaction
between the NES and enterprise agreements would ensure that entitlements to paid family
and domestic violence leave in pre-commencement enterprise agreements would only apply
to employees if these entitlements were not detrimental to an employee when compared to the
NES entitlement. However, new clause 53 is intended to provide parties an avenue to resolve
any uncertainty that may arise about which of the NES or agreement entitlement is more
beneficial, and allow the FWC to vary agreements for consistency with the NES entitlement
where appropriate.
65. New paragraph 53(1)(a) would provide that, on application by an employer, employee
or employee organisation covered by a pre-commencement enterprise agreement that
11
includes terms entitling employees to paid family and domestic violence leave, the FWC
could decide whether the effect of those terms is detrimental to an employee in any respect,
when compared with the NES entitlement.
a. The formulation of this test reflects the language of the existing rules regarding
the interaction between the NES and modern awards and enterprise agreements in
subsection 55(4) of the Act. This subsection provides that awards and agreements
can include terms that supplement the NES but only to the extent that the effect of
those terms is not detrimental to an employee in any respect when compared with
the NES.
66. If the FWC decided that the effect of the enterprise agreement terms entitling
employees to paid family and domestic violence leave was detrimental to an employee when
compared to the NES entitlement, the FWC could make a determination varying the
agreement to make the agreement consistent with the NES entitlement
(subparagraph 53(1)(b)(i)).
67. If the FWC decided that the effect of those agreement terms was not detrimental to an
employee when compared to the NES entitlement, the FWC could make a declaration to this
effect (subparagraph 53(b)(ii)).
68. A declaration made under subparagraph 53(1)(b)(ii) would make clear that the
employee is entitled to paid family and domestic violence leave in accordance with the
agreement, rather than the NES entitlement.
69. New subclause 53(2) would provide that, on application by an employer, employee or
employee organisation covered by a pre-commencement enterprise agreement, the FWC
could make a determination varying the agreement to make it operate effectively with NES
entitlement, including provisions relating to notice and evidence requirements for paid family
and domestic violence leave.
70. New subclause 53(3) would provide that a variation of a pre-commencement
enterprise agreement under clause 53 operates from the day specified in the determination,
which may be a day before the determination is made. However, a determination ensuring
consistency with the NES entitlement could not take effect before that entitlement
commences (i.e. before 1 February 2023). Although this provision would enable a
determination to have retrospective operation, there is no effect on the substantive legal rights
of the parties. The determinations that can be made by the FWC under new
subparagraph 53(1)(b)(i) allow the FWC to vary enterprise agreements to better reflect the
legal obligations of parties under the NES. The determinations that can be made by the FWC
under new subclause 53(2) are intended to resolve difficulties in simultaneously complying
with obligations under the NES and an enterprise agreement, rather than substantially
changing rights.
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SCHEDULE 2--AMENDMENTS RELATING TO ILO CONVENTION
(NO. 190)
Overview
71. Schedule 2 to the Bill would extend the NES entitlement to paid family and domestic
violence leave to non-national system employees.
72. It would also extend the full NES entitlement to paid family and domestic violence
leave to employees who are national system employees only because of sections 30C or 30M
of the Act, that is, because of the state referrals of industrial relations power to the
Commonwealth (state referral employees). When Schedule 1 to the Bill commences, state
referral employees will only be entitled to access the NES entitlement to paid family and
domestic violence leave to the extent it does not constitute leave for victims of crime. This is
because leave for victims of crime is an excluded subject matter not covered by the state
referrals of industrial relations power.
73. The extension of the NES entitlement to paid family and domestic violence leave in
full to state referral employees and non-national system employees would be supported by
the external affairs power once the ILO Convention (No. 190) concerning Violence and
Harassment is ratified and comes into force for Australia. This means the amendments made
by Schedule 2 to the Bill would not come into effect unless and until that Convention comes
into force for Australia.
Fair Work Act 2009
Item 1--Subsection 9(4)
74. Section 9 deals with a collection of miscellaneous matters that relate to other Chapters
in the Act. Item 1 would repeal existing subsection 9(4) and replace it with a new subsection
that clarifies that Part 6-3 of the Act extends NES entitlements relating to unpaid parental
leave, paid family and domestic violence leave and notice of termination to employees not
otherwise covered by those provisions.
75. The NES entitlements to unpaid parental leave and notice of termination are already
extended by Divisions 2 and 3 of Part 6-3 respectively.
Item 2--Section 12
76. Item 2 would insert a new definition of 'extended paid family and domestic violence
leave' into the Dictionary at section 12. The definition would cross-reference
subsection 757B(4).
Item 3--Section 59
77. Item 3 would amend the guide to the NES to make clear that the NES entitlement to
paid family and domestic violence leave is extended to employees not otherwise covered by
those provisions by Part 6-3 of the Act.
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Item 4--At the end of subsection 106D(1)
Item 5--Section 106D (note)
78. Subsection 106D(3) provides that a state referral employee is not entitled to family
and domestic violence leave under the NES to the extent that the leave would constitute leave
for victims of crime.
79. Item 9 of Schedule 2 to the Bill would effectively switch off subsection 106D(3) to
enable the full NES paid family and domestic violence leave entitlement to be extended to
state referral employees. Item 5 would add a note at the end of subsection 106D(3) signalling
this to the reader.
80. Item 4 would make a consequential amendment to move the existing note at the end
of subsection 106D(3) to the end of subsection 106D(1).
Item 6--Subsection 539(2) (after table item 34)
Item 7--After paragraph 557(2)(p)
81. Items 6 and 7 would apply the framework for enforcing civil remedy provisions in the
Act to contraventions of the extended paid family and domestic violence leave provisions.
82. Item 6 would add these contraventions to the table of civil remedy provisions set out
at subsection 539(2) of the Act. The new table item would provide that an employee,
registered employee association or an inspector can bring an action for an alleged
contravention of the extended paid family and domestic violence leave provisions in a
Federal Court or eligible State or Territory court. The maximum civil penalty for a
contravention would be 60 penalty units.
83. Item 7 would apply the course of conduct rule to contraventions of the extended paid
family and domestic violence leave provisions.
Item 8--Section 741
84. Item 8 would amend the guide to Part 6-3, which deals with the extension of the NES,
to make clear that the extended NES entitlements include the NES entitlement to paid family
and domestic violence leave.
Item 9--After Division 2 of Part 6-3
85. Item 9 would insert new Division 2A--Extension of entitlement to paid family and
domestic violence leave into Part 6-3 of the Act.
Subdivision A--Main provisions
Section 757A--Object of this Division
86. New section 757A would provide that the object of Division 2 of Part 6-3 is to give
effect, or further effect, to Australia's international treaty obligations by providing employees
with an entitlement to paid family and domestic violence leave that will help mitigate the
impact of domestic violence in the world of work.
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Section 757B--Extending the entitlement to paid family and domestic violence leave
87. New subsection 757B(1) would extend the application of the NES paid family and
domestic violence leave entitlement to non-national system employees. It would do this by
providing that:
a. any reference in the NES paid family and domestic violence leave entitlement to a
national system employee is taken to include a reference to a non-national system
employee; and
b. any reference in the NES paid family and domestic violence leave entitlement to a
national system employer is taken to include a reference to a non-national system
employer.
88. New subsection 757B(2) would extend the full application of the NES paid family
and domestic violence leave entitlement to state referral employees. It would do this by
effectively switching off subsection 106D(3), which provides that state referral employees are
only entitled to family and domestic violence leave to the extent the leave does not constitute
leave for victims of crime.
89. New subsection 757B(3) would identify other provisions related to paid family and
domestic violence leave that are also extended.
90. Subsection 757B(4) would make clear that the extended paid family and domestic
violence leave provisions also have effect subject to the modifications referred to in
Subdivision B. This subsection would also define the term extended paid family and domestic
violence leave provisions as the provisions of Subdivision CA of Division 7 of Part 2-2, and
the related provisions identified in subsection 757B(3).
91. Subsection 757B(5) would provide that the extension of the NES paid family and
domestic violence leave entitlement provided for by subsections 757B(1) and (2) also apply
to any regulations made for the purposes of a provision to which those subsection apply,
other than a provision that is modified by Subdivision B.
Section 757C--Contravening the extended paid family and domestic violence leave
provisions
92. New section 757C would provide that an employer must not contravene the extended
paid family and domestic violence leave provisions. This is a civil remedy provision under
Part 4-1 (see amendments made by items 6 and 7 of Schedule 2 to the Bill).
Section 757D--References to the National Employment Standards include extended paid
family and domestic violence leave provisions
93. New section 757D would confirm that any reference to the NES includes a reference
to the extended paid family and domestic violence leave provisions.
Section 757E--State and Territory laws that are not excluded
94. New section 757E would make clear that State or Territory laws that provide
employee entitlements in relation to family and domestic violence are not excluded and
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continue to apply to non-national system employees where they provide more beneficial
employee entitlements than the extended paid family and domestic violence leave provisions.
Subdivision B--Modifications of the extended paid family and domestic violence leave
provisions
Section 757F--Non-national system employees are not award/agreement free employees
Section 757G--Modification of meaning of full rate of pay for pieceworkers
Section 757H--Modification of meaning of pieceworker
Section 757J--Modification of provision about relationship between National Employment
Standards and agreements
Section 757K--Modification of power to make regulations
95. These new sections would modify the effect of some of the extended paid family and
domestic violence leave provisions to ensure they operate as intended for non-national system
employees. These modifications do not apply to state referral employees, who will have
access to the full NES paid family and domestic violence leave entitlement as a result of other
amendments made by Schedule 2 to the Bill.
Item 10--Clause 51 of Schedule 1
96. Item 10 would add a new definition of 'deferred start day' as the day after the end of
the period of three months beginning on the day Schedule 2 to the amending Act commences.
Schedule 2 would commence the day the ILO Convention (No. 190) concerning Violence and
Harassment comes into force for Australia.
97. The new definition would be inserted into clause 51 of Part 12 of Schedule 1 to the
Act. Part 12 would provide transitional and application arrangements in relation to the Bill
and would be inserted by item 21 of Schedule 1 to the Bill.
Item 11--At the end of Part 12 of Schedule 1
98. Item 11 would add new clause 54 at the end of Part 12 of Schedule 1 to the Act.
Clause 54--Entitlement to extended paid family and domestic violence leave provisions
99. New subclause 54(1) would provide arrangements for national system employees.
The effect of this subclause is that the 'carve out' for leave for victims of crime in
subsection 106D(3) would be 'switched off' from the day Schedule 2 to the Bill commences.
100. New subclauses 54(2) and 54(3) would provide arrangements for non-national system
employees. The effect of these subclauses would be that the entitlement to paid family and
domestic violence leave would apply to non-national system employees from the deferred
start date (i.e. from three months after Schedule 2 to the Bill commences). This is intended to
give non-national system employers time to make necessary arrangements to facilitate a new
paid leave entitlement.
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101. A non-national system employee employed on the deferred start date would gain ten
days of paid family and domestic violence leave from that date, rather than having to wait
until the anniversary of the start of their employment as is expressed in
paragraph 106A(2)(a). The entitlement to ten days paid family and domestic violence leave
would then reset each year on the day of the anniversary of when the employee started
employment.
102. Non-national system employees who commence employment on or after the deferred
start date would also have access to ten days paid family and domestic violence leave from
the day they commence employment.
103. New subclause 54(4) provides arrangements for casual employees, or employees
employed for a specified period of time, for a specified task or for the duration of a specified
season. The effect of this subclause is that the transitional application arrangements provided
for in subclauses 54(1) to 54(3) would apply to these types of employees 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.
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