Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

FAIR WORK AMENDMENT (PAID FAMILY AND DOMESTIC VIOLENCE LEAVE) BILL 2022

                                     2022


      THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




FAIR WORK AMENDMENT (PAID FAMILY AND DOMESTIC VIOLENCE
                   LEAVE) BILL 2022




           SUPPLEMENTARY EXPLANATORY MEMORANDUM




               Amendments to be Moved on Behalf of the Government




                         (Circulated by authority of the
Minister for Employment and Workplace Relations, the Honourable Tony Burke MP)
    AMENDMENTS TO THE FAIR WORK AMENDMENT (PAID FAMILY AND
              DOMESTIC VIOLENCE LEAVE) BILL 2022

GENERAL OUTLINE

The amendment responds to the Fair Work Commission's submission to the Senate
Education and Employment Legislation Committee's inquiry into the Fair Work Amendment
(Paid Family and Domestic Violence Leave) Bill 2022 (the Bill). The amendment makes
technical updates to the dispute resolution mechanism, which allows the Fair Work
Commission to resolve uncertainties about the interaction between a pre-commencement
enterprise agreement and the new paid family and domestic violence leave entitlement in the
National Employment Standards, to ensure the provisions operate as intended.

FINANCIAL IMPACT

The amendment has no financial impact.

HUMAN RIGHTS IMPLICATIONS

A detailed Statement of Compatibility with Human Rights was prepared for the Bill. The
amendment does not engage any human rights beyond those identified in the original
Statement of Compatibility with Human Rights prepared for the Bill. The amendment does
not affect compatibility with any of the human rights or freedoms identified in that Statement.
NOTES ON AMENDMENTS

In these notes on amendments, the following abbreviations are used:

 Act                Fair Work Act 2009

 FWC                Fair Work Commission

 NES                National Employment Standards



Amendment 1--Schedule 1, item 22, page 7 (line 31) to page 8 (line 19)

1.      This amendment would omit proposed subclause 53(1) of Schedule 1 to the Act (the
original subclause) from the Bill and substitute it with a new subclause (the new subclause).
The new subclause would have substantially the same effect as the original subclause, but is
intended to be clearer.

2.      The new subclause would provide that, on application by an employer, employee or
employee organisation covered by a pre-commencement enterprise agreement that includes
terms entitling employees to paid family and domestic violence leave, the FWC can consider
whether the effect of the terms is detrimental when compared with the entitlement to paid
family and domestic violence leave in the NES. If the FWC considers the effect of those
terms is detrimental compared to the NES, it may vary the terms of the agreement to make
the agreement consistent with the NES.

3.      The language of the new subclause would be updated to provide that the FWC may
'consider' the interaction between the agreement and the NES, rather than make a 'decision'
about the agreement's effect, as provided by the original subclause. This clarifies that the
FWC would not be making a binding decision under clause 53, but rather would be
expressing an opinion about the effect of the agreement.

4.      The new subclause would not contain an equivalent of subparagraph 53(1)(b)(ii) of
the original subclause, which would have provided for the FWC to make a declaration if it
decided that the terms of a pre-commencement enterprise agreement providing for paid
family and domestic violence leave were not detrimental when compared to the NES. This
provision is unnecessary because, as part of its decision-making under the new subclause, the
FWC would need to consider whether the terms of the pre-commencement enterprise
agreement are detrimental to an employee in any respect when compared with the NES, and
publish this decision in writing in accordance with section 601 of the Act.