Kelly O'Dwyer (Higgins, Liberal Party, Minister for Jobs) Share this | Hansard source

I thank the member for Melbourne for his speech, and I appreciate that he is genuinely committed to ensuring that there is an appropriate level of support for victims of domestic violence. However, I remind him and the House that the Fair Work Commission undertook an exhaustive process to strike the right balance in setting a new minimum entitlement for family and domestic violence leave, particularly around what type of leave should be available to victims. It was considered in very extensive detail by the commission. Between October 2014 and July 2018, the commission considered 68 written submissions from 27 parties, received over 2,000 pages of documentation, heard evidence from 26 witnesses and held over 11 days of hearings. Submissions were called and hearings were convened for every step in the process, and unions, employers and community groups all actively engaged in the commission's process. After carefully weighing up all of the evidence, the commission came to a very clear determination, and in its decision it explicitly stated:

… we are not satisfied, at this time, that it is necessary to provide ten days paid family and domestic violence leave to all employees covered by modern awards.

It said:

The ACTU has not provided a satisfactory explanation as to how it arrived at ten days and the evidence does not support a finding that ten days paid leave is necessary.

The government respects the integrity of the fair and balanced process by the Fair Work Commission in undertaking its decision, and this, of course, was also highlighted in the Senate Education and Employment Legislation Committee in its report on the bill, which acknowledged the considerable issues that were looked into by the Fair Work Commission and noted:

The committee did not receive evidence which would challenge the basis of the FWC's decision.

The bill will provide for five days unpaid leave, and it is the right step to take now. This bill will help protect women's job security when they need to take time off to deal with matters that can sometimes only be done in business hours—things like accessing police and related services or relocating to a safe residence.

I just want to touch on the other elements that the member spoke about. The entitlement in the bill matches the entitlement determined to be appropriate by the commission, which is for the leave to be available for an employee who is experiencing family and domestic violence themselves, rather than a close relative of the employee as has been proposed in the amendment. We believe it's important that the decision of the Fair Work Commission be respected. I also just want to note for the record that nothing in this bill prevents an employee from accessing other types of leave, such as carers leave, when the employee needs to provide care for a close relative.

I also want to touch on the confidentiality provisions that were just discussed by the member. The confidentiality provisions in the bill mirror those that are in the Fair Work Commission's model clause. These were the result of significant debate and comprehensive submissions by the parties to the Fair Work Commission and represent the accepted final position. If we were to accept any such amendments, they would ultimately undermine that.

In addition, the proposed civil penalty would be of no utility because section 44 of the Fair Work Act already contains a civil penalty for such contraventions of the National Employment Standards. Further, the maximum penalty for breaching section 44 is 60 penalty units and is therefore higher than the 30 penalty units proposed by this item.

I understand the intent that is behind the amendment, but—can I say—the bill legislates the right of family and domestic violence leave in the National Employment Standards, and it extends this to around eight million workers covered by the Fair Work Act, who will have, as a result of this bill, access to a minimum standard, and their jobs will be protected should they ever find themselves in the terrible circumstances where they need to access this right. It is, of course, a minimum standard, and of course employers who would like to go above the minimum standard are absolutely free to do so.

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