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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK LEGISLATION AMENDMENT (STRENGTHENING PROTECTIONS
AGAINST DISCRIMINATION) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Lambie and David Pocock)
FAIR WORK LEGISLATION AMENDMENT (STRENGTHENING
PROTECTIONS AGAINST DISCRIMINATION) BILL 2023
OUTLINE
The Fair Work Legislation Amendment (Strengthening Protections Against Discrimination)
Bill 2023 (the Bill) amends the Fair Work Act 2009 (FW Act) to improve workplace
protections against discrimination for employees who have been, or continue to be, subjected
to family and domestic violence.
Family and domestic violence can be a significant impediment and disruption to favourable
work conditions. Under existing arrangements in the FW Act, an employee who is subjected
to family and domestic violence is not necessarily protected from employer adverse action
within the workplace unless it is connected to the exercise of the employee's workplace rights
(that is, accessing paid family and domestic violence leave) or it can be argued to be protected
by another attribute, such as sex. An employee's subjection to family and domestic violence
therefore could be a source of discrimination within the workplace, for example resulting in a
reduction of work hours or a demotion.
Subjection to family and domestic violence is not currently a protected attribute in the FW Act
or other Commonwealth anti-discrimination laws but is protected by some State and Territory
anti-discrimination laws. The Bill includes a new protection for employees and prospective
employees by recognising subjection to Family and Domestic Violence as a protected attribute
within the FW Act's anti-discrimination provisions.
The Bill would prohibit a national system employer from taking adverse action against an
employee or prospective employee on the basis they have experienced family and domestic
violence. The amendments would also prohibit employers who are not covered by Part 3-1 of
the FW Act from terminating an employee's employment on the basis of subjection to family
and domestic violence.
This Bill would promote the right to just and favorable conditions of work and prevent
discrimination in access to and maintenance of employment by ensuring employees and
prospective employees who have been, or continue to be, subjected to FDV are protected from
adverse action.
The amendments would prohibit modern awards and enterprise agreements from including
terms that discriminate against employees because of, or for reasons including, their subjection
to family and domestic violence. The amendments would also require the Fair Work
Commission, when performing functions or exercising its powers under the FW Act in relation
to a matter, to take into account the need to respect and value the diversity of the workforce by
helping to prevent and eliminate discrimination on the basis of subjection to family and
domestic violence.
Modern awards and enterprise agreements must not include terms that discriminate against
employees on the basis of a range of protected attributes. By including this additional protected
attribute, this Bill would ensure that employees who are subjected to FDV are also afforded
equal, favourable conditions of work within the terms of modern awards and enterprise
agreements. For example, if the Fair Work Commission is considering whether to approve a
new enterprise agreement, the amendments would require the Fair Work Commission to be
satisfied that the agreement does not include any terms that discriminate against employees on
the basis of their subjection to FDV. The Bill would further promote the right to just and
favourable conditions of work by requiring the FWC to take into account the need to prevent
and eliminate discrimination on the basis of subjection to FDV when exercising its powers and
performing its functions.
The FW Act was recently amended by the Fair Work Amendment (Paid Family and Domestic
Violence Leave) Act 2022 to introduce 10 days of paid FDV leave in a 12-month period for
full-time, part-time and casual employees. These amendments would complement this leave
entitlement as both amendments seek to give effect to Australia's obligations under Violence
and Harassment Convention 2019 (ILO Convention 190) and work to progress the same overall
policy intention.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. The Bill will commence the day after it receives Royal Assent.
Clause 3: Schedules
3. This clause gives effect to the provisions in Schedule 1 to the Bill.
Schedule 1-- Strengthening Protections Against Discrimination
Fair Work Act 2009
Item 1: Subsection 153(1)
Item 2: Subsection 195(1)
Item 3: Subsection 351(1)
Item 4: Subsection 578
Item 5: Paragraph 772(1)(f)
4. The FW Act contains a range of protections against discriminatory conduct:
• Subsections 153(1) and 195(1) of the FW Act deal with discriminatory terms in
modern awards and enterprise agreements, respectively.
• Subsection 351(1) of the FW Act prohibits an employer from taking
discriminatory adverse action against a person who is a current or prospective
national system employee because of the person's protected attribute.
• Paragraph 578(c) requires the FWC, when performing its functions or exercising
powers, to take into account the need to respect and value the diversity of the
work force by helping to prevent and eliminate discrimination.
• Paragraph 772(1)(f) prohibits an employer from terminating an employee's
employment because of the person's protected attribute.
5. These items would add 'subjection to family and domestic violence' to the existing
list of protected attributes at each of these provisions.
6. This protection against subjection to family and domestic violence would be
consistent with the approach of State and Territory anti-discrimination laws which
include family and domestic violence as a protected attribute.1 This protection would
also ensure the anti-discrimination provisions in the FW Act would not apply to
persons who are perpetrators of (or have perpetrated) family and domestic violence
and who are not subject to (or have not been subjected to) family and domestic
violence.
7. Under existing subsection 342(3) of the FW Act, action taken that is authorised by
or under a law of the Commonwealth or a law of a State or Territory prescribed by
the regulations, such as an action taken to mitigate a work health safety risk, does
not constitute adverse action for the purposes of subsection 351(1).
Item 6: Before Section 789HA
Item 7: Section 789HA (heading)
Item 8 - Section 789HA
8. These items are consequential amendments to Part 6-4E of the FW Act to
accommodate the insertion of a new Division 2.
Item 9 - At the end of Part 6-4E
9. This item would insert a new Division 2 in existing Part 6-4E dealing with the
constitutional basis for the amendments and the extension of the anti-discrimination
rules. This would ensure that the amendments to add subjection to FDV as a
protected attribute under the FW Act would have constitutional support to apply to
national system employers and employees by virtue of the external affairs power
under paragraph 51(xxix) of the Constitution.
10. This would ensure that the amendments to add subjection to FDV as a protected
attribute in the FW Act have constitutional support to apply in relation to employees
and employers that are national system employees and employers by virtue of the
States' referrals of industrial relations power (State referral employees and
employers).
1
Discrimination Act 1991 (ACT) s 7(1)(x); Industrial Relations Act 2016 (QLD) s 296; Anti-Discrimination Act
1992 (NT) s 19(1)(jb); Equal Opportunity (Domestic Abuse) Amendment Act 2023 (SA). See also Law Reform
Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) (Project 111 Final Report),
May 2022, pp. 12, 121-4.
11. New section 789HC would set out the Conventions relied upon for the external
affairs power under paragraph 51(xxix) of the Constitution.
12. Existing sections 153, 195 and 351 of the FW Act are intended to operate with the
same coverage in relation to subjection to FDV as they currently do in relation to the
existing protected attributes. The extension of these amendments by new section
789HD to State referral employers and employees, and in the case of section 351 to
action taken in a referring State, would rely on the external affairs power as
enlivened by the Conventions listed in new section 789HC.
13. The amendments to paragraph 578(c) made by item 4 would be supported by the
incidental aspects of the relevant powers relied on to support sections 153, 195 and
351, and so is not covered by this item.
14. These amendments give effect to Australia's obligations under ILO Convention 111
and the ILO Convention 190.
15. Article 2 of ILO Convention 111 requires Members to declare and pursue a national
policy designed to promote equality of opportunity and treatment in respect of
employment and occupation, with a view to eliminating any discrimination in
employment.
16. Article 3(b) of ILO Convention 111 requires Members to, by methods appropriate
to national conditions and practice, enact such legislation 'as may be calculated to
secure the acceptance and observance of the policy.'
17. The National Plan to End Violence against Women and Children 2022-2032
(NPEVWC), is a national policy encouraging workplaces to integrate intervention
initiatives to reduce, prevent and respond appropriately to sexual harassment and
violence. The NPEVWC aims to promote recovery for victim-survivors, including
'rebuilding of a victim-survivor's life, their ability to return to the workplace and
community, as well as obtaining financial independence and economic security'.
The term 'victim-survivor' is used in the NPEVWC as a gender-neutral term to
describe all people, including men, experiencing family, domestic and sexual
violence. The NPEVWC also aims to challenge sensationalised or stereotyped
views, as well as views informed by other types of discrimination, that contribute to
a culture that condones gender-based violence and enables victim-blaming. The
NPEVWC notes '[e]ffective processes and policies can also enable employees
experiencing gender-based violence to seek support and receive assistance from their
employers'. These amendments would support these aims by preventing
discrimination against employees and prospective employees subjected to FDV and,
in the case of items 3 and 4, allowing a victim-survivor to seek civil remedy when
they believe their employer or prospective employer has contravened the relevant
general protections prohibitions.
18. The Australian Government ratified ILO Convention 190 on 9 June 2023. When ILO
Convention 190 comes into force for Australia on 9 June 2024, these amendments
would engage Australia's commitments under this Convention to ensure
nondiscrimination in employment and occupation, and to mitigate the effects of
domestic violence in the world of work.
19. Article 6 of ILO Convention 190 requires Members to adopt laws, regulations and
policies ensuring the right to equality and non-discrimination in employment and
occupation, including for women workers, as well as for workers and other people
belonging to vulnerable groups disproportionately affected by violence and
harassment in the world of work. These amendments ensure the right to equality and
nondiscrimination for employees experiencing FDV by establishing a new protected
attribute within the FW Act for employees who have been, or continue to be,
subjected to family and domestic violence.
20. Article 10(f) of ILO Convention 190 requires Members to take appropriate measures
to recognise the effects of domestic violence and, so far as reasonably practicable,
mitigate its impact in the world of work. These amendments recognise the effects of
domestic violence and mitigate its impact in the world of work by preventing
discrimination against employees subjected to family and domestic violence and
improving those employees' options for recourse when such discrimination does
occur in the workplace.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Legislation Amendment (Strengthening Protections Against Discrimination)
Bill 2023
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 FW Act to improve workplace protections against discrimination for
employees who have been, or continue to be, subjected to family and domestic violence.
Under existing arrangements in the FW Act, an employee who is subjected to family and
domestic violence is not necessarily protected from employer adverse action within the
workplace unless it is connected to the exercise of the employee's workplace rights (that is,
accessing paid family and domestic violence leave) or it can be argued to be protected by
another attribute, such as sex. An employee's subjection to family and domestic violence
therefore could be a source of discrimination within the workplace, for example resulting in a
reduction of work hours or a demotion.
Subjection to family and domestic violence is not currently a protected attribute in the FW Act
or other Commonwealth anti-discrimination laws but is protected by some State and Territory
anti-discrimination laws. The Bill includes a new protection for employees and prospective
employees by recognising subjection to family and domestic violence as a protected attribute
within the FW Act's anti-discrimination provisions.
The Bill would prohibit a national system employer from taking adverse action against an
employee or prospective employee on the basis they have experienced family and domestic
violence. The amendments would also prohibit employers who are not covered by Part 3-1 of
the FW Act from terminating an employee's employment on the basis of subjection to family
and domestic violence.
This Bill would promote the right to just and favorable conditions of work and prevent
discrimination in access to and maintenance of employment by ensuring employees and
prospective employees who have been, or continue to be, subjected to FDV are protected from
adverse action.
Human rights implications
This Bill positively engages the following rights and freedoms:
• the right to an effective remedy under Article 2(3) of the International Covenant
on Civil and Political Rights (ICCPR);
• the right of women not to be discriminated against based on gender under
Articles 2, 3 and 11 of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) and Article 26 of the ICCPR;
• the right to equality and non-discrimination under Article 2 of the ICCPR and
Article 2 of the International Covenant on Economic Social and Cultural Rights
and Article 26 of the ICCPR;
• the right of parents and children in Articles 3(1) and 18(1) of the Convention on
the Rights of the Child and Article 5 of CEDAW.
Conclusion
This Bill is compatible with human rights as it promotes human rights.
Senator Jacqui Lambie and Senator David Pocock