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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Improving National Employment Standards) Bill 2018
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Adam Bandt MP
Fair Work Amendment (Improving National Employment Standards) Bill 2018
OUTLINE
The Bill amends the Fair Work Act 2009 to enable an employee who is a survivor of family and
domestic violence to take up to 10 days paid family and domestic violence leave per calendar year
or 2 days of unpaid family and domestic violence leave for each permissible occasion. This is
achieved by adding family and domestic violence leave to the National Employment Standards.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Act to be cited as the Fair Work Amendment (Improving
National Employment Standards) Act 2018
Clause 2: Commencement
2. This clause states the whole of this Act will commence on the day after it receives the
Royal Assent.
Clause 3: Schedules
3. This clause gives effect to the Schedules. It provides that legislation that is specified in a
Schedule to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Schedule 1 - Amendments of the Fair Work Act 2009
Item 1: Section 12
Inserts definitions for eligible family and domestic violence leave activity, eligible family and
domestic violence leave relationship, experiences family or domestic violence and paid
family and domestic violence leave.
Item 2: Section 12 (definition of permissible occasion)
Updates the definition of permissible occasion to include new subsection 103H (item 8 below).
Item 3: Section 12
Inserts definition for unpaid family and domestic violence leave.
Item 4: Subsection 17(2) note
Adds "family and domestic violence leave" to the note.
Item 5: Paragraph 61(2)(e)
Lists "family and domestic violence leave" as a minimum standard.
Item 6: Paragraphs 65(1A) (e) and (f)
Allows an employee to request flexible working arrangements if;
(e) the employee engages in one or more eligible family and domestic violence leave
activities in connection with an experience of the employee of family or domestic violence (defined
in 103C and 103D, item 8 below);
(f) the employee engages in one or more eligible family and domestic violence leave
activities in connection with an experience of another person, with whom the employee has an
eligible family and domestic violence leave relationship, of family or domestic violence.
(g) the employee provides care or support to another person:
(i) with whom the employee has an eligible family and domestic violence leave
relationship (defined in 103E, item 8 below); and
(ii) who requires care or support because of an experience of that other person of
family or domestic violence.
Item 7: Division 7 of Part 2-2 (heading)
Adds family and domestic violence leave to the National Employment Standards by amending
the heading of Division 7 of Part 2-2 to Division 7 - Personal/carer's leave, family and
domestic violence leave and compassionate leave
Item 8: After subdivision B of Division 7 of Part 2-2
Inserts a new subdivision - Subdivision BA - Paid family and domestic violence leave, which
sets out an employee's entitlement to paid family and domestic violence leave, the requirements
for taking paid family and domestic violence leave, provides a definition for; when a person
experience family or domestic violence, eligible family and domestic violence activity leave, eligible
family and domestic violence leave relationship. The subdivision also specifies when an employee
is taken not to be on family and domestic violence leave and provides for the payment of paid
family and domestic violence leave.
103A Entitlement to paid family and domestic violence leave
Sets out the entitlement to paid family and domestic violence leave.
(1) The amount of paid family and domestic violence leave is 10 days per calendar year;
(2) An employee's entitlement to paid family and domestic violence leave for a calendar year
accrues in full at the start of the year or, if the employee starts at a later time during the
year, at that time.
(3) An employee's entitlement to paid family and domestic violence leave does not accumulate
from year to year.
103B Taking paid family and domestic violence leave
Specifies an employee may take paid family and domestic violence leave if:
(1)
(a) The employee experiences family or domestic violence; and
(b) The leave is taken to engage in an eligible family and domestic violence leave activity in
connection with that experience of family and domestic violence.
(2)
(a) Another person experiences family or domestic violence; and
(b) The employee has an eligible family and domestic violence leave relationship with the other
person; and
(c) Either;
(i) The leave is taken for the employee to engage in an eligible family and domestic
violence leave activity in connection with that other person's experience of family or
domestic violence; or
(ii) The other person requires care or support because of that experience of family or
domestic violence, and the leave is taken for the employee to provide care or
support to that other person.
(3) An employee may take paid family and domestic violence as:
(a) a single continuous 10 day period; or
(b) any separate periods.
(4) An employee may take paid family and domestic violence leave during a particular period even
if the employee could instead take another kind of leave.
The subsection notes that the evidentiary requirements of section 107 must be complied with.
103C When a person experiences family or domestic violence
Defines experiences family or domestic violence as;
A person (the first person) experiences family or domestic violence if:
(a) The first person experiences violent, threatening or other behaviour by another person (the
second person); and
(b) The first person has an eligible family and domestic violence leave relationship with the
second person; and
(c) The behaviour coerces or controls the first person, or causes the first person to be fearful.
The subsection provides the following examples of behaviour to which this section may apply;
(a) An assault
(b) A sexual assault or other sexually abusive behaviour;
(c) Stalking;
(d) Repeated derogatory taunts;
(e) Intentionally damaging or destroying property;
(f) Intentionally causing death or injury to an animal;
(g) Unreasonably denying the first person the financial autonomy that the first person would
otherwise have had;
(h) Unreasonably withholding financial support needed to meet the reasonable living expenses
of the first person, or the first person's child, at a time when the first person is entirely or
predominantly dependent on the second person for financial support;
(i) Preventing the first person from making or keeping connection with his or her family, friends
or culture;
(j) Unlawfully depriving the first person, or any member of the first person's family, of his or her
liberty.
103D Meaning of eligible family and domestic violence leave activity
Defines an eligible family and domestic violence leave activity as each of the following;
(a) Receiving counselling or otherwise attending an appointment with a person who provides
support to survivors of family or domestic violence;
(b) Receiving medical attention;
(c) Receiving legal advice;
(d) Attending legal proceedings;
(e) Relocating or making other safety arrangements;
(f) Any other activity associated with an experience of family or domestic violence.
103E Meaning of eligible family and domestic violence leave relationship
Defines eligible family and domestic violence leave relationship as;
A person (the first person) has an eligible family and domestic violence relationship with
another person (the second person) if;
(a) The second person is a spouse, de facto partner, child, parent, grandparent, grandchild or
sibling of the first person; or
(b) The second person is a child, grandparent, grandchild or sibling of a spouse, de facto
partner of the first person; or
(c) The second person is related to the first person under Aboriginal or Torres Strait Islander
kinship rules; or
(d) If the first person is a member of a community that accepts relationships other than those
referred to in paragraphs (a) and (b) as kinship ties - the second person is a person who is
accepted by that community to be related to the first person.
103F Employee taken not to be on paid family and domestic violence leave at
certain times
States that an employee is taken not to be on paid family and domestic violence leave if the period
during which the employee takes paid family and domestic violence leave includes a day or part-
day that is a public holiday or includes a period of any other leave (other than unpaid parental
leave) under this Part or a period of absence from employment under Division 8 (which deals with
community service leave).
103G Payment for paid family and domestic violence leave
Provides for the payment of paid family and domestic violence leave. An employer must pay the
employee;
(a) For an employee other than a casual employee - at the employee's base rate of pay for the
employee's ordinary hours of work in that period; or
(b) For a casual employee - at the employee's base rate of pay, plus any casual loading that
the employer would be required to pay the employees, for the hours of work in the period
for which the employee was rostered.
Subdivision BB - Unpaid family and domestic violence leave
Inserts a new subdivision which sets out an employee's entitlement to unpaid family and domestic
violence leave and the requirements for taking unpaid family and domestic violence leave.
103H Entitlement to unpaid family and domestic violence leave
An employee is entitles to 2 days of unpaid family and domestic violence leave for each occasion
(a permissible occasion) when;
(a) The employee experiences family or domestic violence; or
(b) Another person, with whom the employee has an eligible family and domestic violence
leave relationship, experiences family or domestic violence.
103J Taking unpaid family and domestic violence leave
(1) Specifies an employee may take unpaid family and domestic violence leave for a particular
permissible occasion if:
(a) The leave is associated with the employee engaging in an eligible family and domestic
violence leave activity in connection with the experience of family or domestic violence
referred to in paragraph 103H(a) or (b); or
(b) The other person who experienced family or domestic violence as referred to in paragraph
103H(b) requires care or support because of that experience, and the leave is taken to
provide care or support to that other person.
(2) An employee may take unpaid family and domestic violence leave for a particular permissible
occasion as:
(a) A single continuous period of up to 2 days; or
(b) Any separate periods.
(3) An employee cannot take unpaid family and domestic violence leave during a particular period
if the employee could instead take paid family and domestic violence leave
Subdivision BC - Non-disclosure of information
103K Information relating to taking of family and domestic violence leave not to be
disclosed
Relates to the unauthorised disclosure of information regarding an employee's request and/or
taking of paid or unpaid family and domestic violence leave. Confidentiality is important in order to
maintain the employee's safety, autonomy and privacy.
Subsection (2) introduces a civil remedy provision that stipulates the employer must not disclose
the information to any other person if the information may enable the employee to be identified.
Subsection (3) states subsection (2) does not apply if:
(a) The disclosure is to the employee; or
(b) The disclosure is reasonably necessary for the purposes of enabling the employee to take
the leave; or
(c) The disclosure is required or authorised by or under a law; or
(d) The employee has consented, in writing, to the disclosure.
Examples of who may be permitted to disclose under subsection 3(b) include persons who process
leave taken by the employee (human resources or payroll staff).
Subsection (4) relates to the unauthorised secondary disclosure of information by a person under
paragraph (3)(b) and subsection (5) states subsection (4) does not apply if:
(a) The disclosure is to the employee or the employer; or
(b) The person discloses the information for the purposes for which the information was
disclosed to the person; or
(c) The disclosure is required or authorised by or under a law; or
(d) The employee has consented, in writing, to the disclosure.
Item 9: After paragraph 107(3)(b)
Extends evidence requirements to paid and unpaid family and domestic violence leave if required
by the employer.
Item 10: Subsection 107(5)
Allows modern awards and enterprise agreements to include terms relating to evidence
requirements for paid and unpaid family and domestic violence leave.
Item 11: Section 107 (note)
Amends the existing note to "Note 1" to allow an additional note as per item 12 below.
Item 12: At the end of section 107
Adds a note advising non-disclosure requirements under section 103K extends to evidence
obtained by the employer relating to the taking of paid or unpaid family and domestic violence
leave.
Item 13: Subsection 539(2) (after table item 5)
Adds civil remedy provisions 103K(2) and (4) to applications for orders in relation to contraventions
of civil remedy provisions.
An employee, employee organisation or an inspector can apply to the Federal Court or Federal
Circuit Court for orders in relation to a contravention or proposed contravention of civil remedy
provisions 103K(2) or (4) with a maximum penalty of 30 penalty units.
Item 14: In the appropriate position in Schedule 1
Part 8 - Amendments made by the Fair Work Amendment (Improving National
Employment Standards) Act 2018
39 Entitlement to paid family and domestic violence leave
Subdivision BA of division 7 of Part 2-2 applies in relation to the year in which this clause
commences and to each later year.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.paid
Fair Work Amendment (Improving National Employment Standards) 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 Bill amends the Fair Work Act 2009 to enable an employee who is a survivor of family and
domestic violence to take up to 10 days paid family and domestic violence leave per calendar year
or 2 days of unpaid family and domestic violence leave for each permissible occasion. This is
achieved by adding family and domestic violence leave to the National Employment Standards.
Human rights implications
This bill engages the right to protection from exploitation, violence and abuse. Survivors of family
and domestic violence risk becoming economically trapped if they are unable to maintain
employment. Economic independence is critical in assisting survivors of family and domestic
violence to leave violent and abusive relationships. Providing paid or unpaid family and domestic
violence leave positively advances Australia's obligation to protect persons from exploitation,
violence and abuse.
Conclusion
This bill is compatible with human rights because it advances the protection of human rights.
Adam Bandt MP