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 amendments would address concerns raised during the Senate Education and
Employment Legislation Committee's inquiry into the Fair Work Amendment (Paid Family
and Domestic Violence Leave) Bill 2022 (the Bill) that the inclusion of information about an
employee's paid family and domestic violence leave entitlement on a pay slip could present a
danger to employees. The amendment would insert a regulation-making power at
subsection 536(2) of the Fair Work Act 2009 to enable regulations to be made preventing an
employer from recording paid family and domestic violence leave on an employee's pay slip.

FINANCIAL IMPACT

The amendments have no financial impact.

HUMAN RIGHTS IMPLICATIONS

A detailed Statement of Compatibility with Human Rights was prepared for the Bill. In
addition to the human rights identified in the original Statement, the amendments would
further support the right to privacy and reputation under Article 17 of the International
Covenant on Civil and Political Rights by addressing stakeholder concerns about the impact
of payroll reporting on the privacy of employees experiencing family and domestic violence.

During the Senate Education and Employment Legislation Committee Inquiry into the Bill,
several stakeholders noted the potential for a pay slip to compromise an employee's safety if
it recorded information about the employee's paid family and domestic leave entitlement.
For example, a pay slip that recorded a decrease in an employee's paid family and domestic
leave balance could act as a red flag for perpetrators who may be monitoring an employee's
pay slips and bank account.

The amendments would positively engage the right to privacy by providing a clear
prohibition on the inclusion of certain prescribed information relating to paid family and
domestic violence leave in pay slips. This would prevent perpetrators from accessing this
sensitive information and avoid associated risks for victim-survivors.

The amendment is compatible with human rights because it advances the protection and
enjoyment of the right to privacy.
NOTES ON AMENDMENTS

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

Act                 Fair Work Act 2009

Regulations         Fair Work Regulations 2009

Senate Inquiry      Senate Education and Employment Legislation Committee's inquiry
                    into the Fair Work Amendment (Paid Family and Domestic
                    Violence Leave) Bill 2022


Amendment 1--Schedule 1, page 6 (after line 4), after item 21

1.     Section 536 of the Act sets out employers' obligations in relation to pay slips.
Subsection 536(2) provides that a pay slip must be in a form prescribed by the Regulations
and include any information prescribed by the Regulations. On its face, subsection 536(2)
places a positive obligation on an employer to include certain information in a pay slip but
would not support regulations prohibiting employers from including certain details.

2.     To address this gap, amendment 1 would insert a new regulation-making power into
subsection 536(2) of the Act to enable regulations to be made prescribing information in
relation to paid family and domestic violence leave that must not be included in pay slips.
For example, regulations could be made prohibiting an employer from recording an
employee's paid family and domestic violence leave balance on a pay slip.

3.     This would address concerns raised by stakeholders during the Senate Inquiry about
the risks of perpetrators becoming aware that an employee is taking paid family and domestic
violence leave through pay slip reporting. The Government will consult on the specific form
of the regulation as part of the drafting process.
Amendment 2--Schedule 2, item 9, page 13 (lines 1 to 7), omit subsection 757B(4)

Amendment 3-- Schedule 2, item 9, page 13 (after line 11), after section 757B

4.     Amendments 2 and 3 would extend the requirement not to include any information
in a pay slip prescribed by the regulations under new paragraph 536(2)(c) in relation to paid
family and domestic violence leave to non-national system employees.