Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 Expands Unpaid Leave Right

Thursday 18 October 2018 @ 11.51 a.m. | Crime | Industrial Law

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) ("the Bill") was introduced into the Federal Parliament on 13 September 2018 by Ms O’Dwyer, the Minister for Women ("the Minister"), and was subsequently referred to the Senate Education and Employment Legislation Committee ("the Committee"). In broad terms, the Bill proposes amendment of the Fair Work Act 2009 (Cth) ("the Act") to insert a new entitlement in the National Employment Standards ("the NES") to "five days of unpaid family and domestic violence leave".

According to the Minister, the entitlement to five days of unpaid family and domestic violence leave introduced into the NES is consistent with the entitlement in the Model Clause that was developed by the Fair Work Commission ("the Commission"), as part of the 4 Yearly Review of Modern Awards ("the 4 Yearly Review") (see the decision at [2018] FWCFB 1691, decided 26 March 2018).

The Commission's Decision

In their decision, the majority of the Commission made the following findings:

  •  Family and domestic violence has a significant adverse impact on those who experience such violence.
  •  While men can, and do, experience family and domestic violence, such violence is a gendered phenomenon that disproportionately affects women.
  •  The effects of family and domestic violence are far reaching and extend beyond the individual directly affected; to their families and the general community.
  •  Family and domestic violence has a real and tangible impact on employees and employers in the workplace.
  •  Employees who experience family and domestic violence often face financial difficulties as a result, such as relocation costs or becoming a sole parent; and may suffer economic harm as a result of disruption to workplace participation.
  • As a result the government claims that the new laws expand the entitlement to family and domestic violence leave to the broader Australian workforce and will result in up to six million additional workers guaranteed access to the new workplace right without delay, and in all, eight million workers will have access to the new right.

In its decision, the Commission "accepted that family and domestic violence is a gendered phenomenon that disproportionately affects women, and that women are more likely than men to:

  •  be subjected to frequent, prolonged and extreme violence;
  •  be sexually assaulted;
  •  sustain injuries;
  •  fear for their lives; and
  •  experience other negative consequences, such as psychological harm.

The Commission also adopted the conclusion that "the circumstances faced by employees who experience family and domestic violence require a special response", and stated that family and domestic violence is a community issue and requires a community response. 

Motivation for the Bill

The Government's Explanatory Memorandum points out that:

  •  One in four women in Australia have experienced family and domestic violence (almost 2.2 million women). 
  •  Domestic and intimate partner homicides represent the highest proportion of any category of homicides in Australia. 
  •  At least one woman a week is killed by a partner or former partner.
  •  Family and domestic violence is the leading contributor to death, disability and ill-health among Australian women aged between 15 and 44.
  •  Such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. 
  • Most importantly, it is an issue that impacts on workplaces and requires specific action.

Specifics of Changes Introduced in the Bill

As a result of the decision of the Commission on 26 March 2018, the new clause began operating in 123 modern industry and occupation awards from 1 August 2018. The new clauses inserted by the Commission only affect employees whose terms and conditions are set by those awards. Many other Australian workers have employers who have already implemented policies and entitlements to provide such support to their employees. Even so, there are still millions of Australian employees in the national system who do not have access to family and domestic violence leave and this is a situation the Bill is intended to address.

The Bill, according to the Minister is intended to be in line with the Commission’s Model Clause, and the entitlement contained in the Bill would:

  •  provide five days of unpaid family and domestic violence leave in a 12 month period;
  •  apply to all types of employees, including casual employees;
  •  be available in full at the commencement of each 12 month period, rather than accruing through the year;
  •  not accumulate from year to year; and
  •  be available in full to part-time and casual employees, rather than pro-rated. 

The Review Committee's Report

As reported above the Bill was reviewed by the Committee which reported on the Bill on 12 October 2018. The Committee recommended that the Senate pass the Bill saying at Chapter 2 Par 2.46:

"The committee notes that some submissions called for the proposed leave entitlement to be extended, and recognises the positive intentions behind those calls. However, the committee also notes that the FWC—the independent arbiter empowered under the Act to set standards—has already considered this matter and concluded that, on balance, five days unpaid leave would provide an appropriate safety net entitlement. The committee is persuaded that bringing the minimum NES standard into line with the modern award standard set by the FWC is appropriate, and agrees that the proposed measures would promote consistency for workers and employers. The committee supports the FWC's commitment to reviewing the proposed entitlement in three years' time."

Labor and the Greens dissented and in their dissenting report recommend that the government amend the Bill to provide 10 days paid family and domestic violence leave - a view in line with the position of the ACTU rather than that decided by the FWC in the 4 Yearly Review.

"Labor and Greens Senators support the principle behind the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 ('the bill'), but believe that it is a missed opportunity to make far reaching and more meaningful changes to family and domestic violence leave through the implementation of 10 days paid leave."

Next Steps

This reform will provide a guaranteed minimum entitlement that must be applied to every employee covered by the Act and does not preclude employers applying their own additional domestic and family violence policies and practices.  The Bill is still being considered by the House of Representatives.

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