Matt O'Sullivan (WA, Liberal Party) Share this | Hansard source

I have great pride in standing here to speak on the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. I want to set out from the outset, though, that this is obviously a difficult subject. Any form of family and domestic violence is totally and utterly unacceptable, it's abhorrent and it continues to be a blight on Australian society.

Before I go on to the substance of this debate, I also want to acknowledge the good work of the committee that I'm on, the Education and Employment Legislation Committee. Often this committee can be a little partisan in its approach to issues, but we, through this inquiry and the hearings that we had, worked incredibly well together across the different parties. It was a really good examination of the issues that surround this bill. I acknowledge the chair and all the participants in that committee because it was a good process that we went through and a good example of what we should be doing more of.

To the substance of the bill: there's no doubt that there are few more serious issues than family and domestic violence. There are too many horrific and distressing stories of domestic violence that we all read and hear about and that all of us no doubt can share. Domestic violence is insidious. It sometimes begins with psychological, emotional and financial abuse by the perpetrator towards the victim, and it can then escalate to actual physical violence. All too often, this harm tragically ends in death for the victim.

There is little doubt that there is a fundamental family and domestic violence issue in Australia. I would not dispute it being characterised as an epidemic in this country. There is neither tolerance nor excuses for those that perpetrate family and domestic violence. The long-term physical, emotional and psychological consequences for victims-survivors and their families can take years to heal—if they ever do. Early in my professional career, I worked for about eight years as a youth worker. I saw, firsthand, experiences of family and domestic violence and the effect it has on families, particularly on young people. Family and domestic violence disproportionately impacts women and, of course, children.

A New South Wales government study reveals that one in four children are exposed to domestic violence. Witnessing family and domestic violence can leave an indelible impression on children for the rest of their lives. On average, one woman in Australia is killed every 11 days by a partner, and one in four women have experienced violence by a current or former intimate partner since the age of 15.

Family and domestic violence is a significant and complex health, societal and, indeed, workplace issue in Australia. This is an issue that we are dealing with as a nation and one that impacts on every part of our lives and every part of our society. The former coalition government recognised this and passed legislation in 2018 which gave provision in the National Employment Standards for five days of unpaid family and domestic violence leave for full-time and part-time employees. This was in line with a decision made earlier that year by the Fair Work Commission. The legislation in 2018 was a significant reform and acknowledged the impact that family and domestic violence had on people's lives. It also recognised that family and domestic violence was increasingly a workplace issue and that many businesses, particularly larger organisations, had already introduced family and domestic violence leave in their workplace agreements.

Earlier this year, the Fair Work Commission made a ruling that recommended paid family and domestic violence leave for full-time and part-time employees. It was a sensible decision by the Fair Work Commission and one that I support. I agree that family and domestic violence leave for full-time and part-time employees is an important part of that process to assist victims to transition out of violent relationships and begin the process of recovery from family and domestic violence. However, the government's proposed legislation here seeks to go beyond the prudent recommendations made by the Fair Work Commission. This legislation now seeks to widen the ambit of paid family and domestic violence leave to include casual employees.

Many small businesses are genuinely concerned that government is wanting to go beyond the Fair Work Commission provisional model and extend this new entitlement to casual employees. Undoubtedly, casual employment plays a vital role for many small businesses, who play a critical role in growing and maintaining the strong economy that we have. The nature of casual employment provides flexibility for small-business operators and employers alike. However, casual employees are paid a leave loading in lieu of the paid entitlements given to full-time and part-time employees.

Unlike large businesses, who have a much broader capacity to absorb the new costs associated with introduction of new entitlements like this, small businesses don't always have that ability. They do not have large payroll systems or HR departments and administration to be able to absorb this. These are often standard practices for large businesses, and maybe even medium-sized businesses, but very rarely are found within a small business environment. The introduction of a paid leave scheme will have potentially disruptive effects on, particularly, small businesses. The Fair Work Commission knew this. It acknowledged in its provisional model that including family and domestic violence leave in the modern award system would increase the utilisation of such a scheme and, therefore, there would likely be some increase in unplanned employee absences.

I have concerns with the ambiguous nature that this legislation has around the inclusion of perpetrators of family and domestic violence leave, and the government needs to urgently clarify this. I for one do not support any provision for perpetrators of family and domestic violence leave being able to access paid family and domestic violence leave. It is not clear in this bill that perpetrators are indeed not covered. The government needs to make this clear. Aside from facing the full extent of the law, there are existing services offered, including counselling, for perpetrators to access. That's an important part of tackling this issue, and it is one that I fully support, but it shouldn't be on the employers of this country to pay for perpetrators. If anything, state and territory governments should be continuing to strengthen the Criminal Code for perpetrators of family and domestic violence.

As deputy chair of the Senate Education and Employment Legislation Committee's inquiry into this bill, it was apparent during the hearing that potential economic costs, particularly as I've already discussed, for small and family businesses and for medium businesses, had not been adequately established by the government. The government wants the benefit of the doubt with this legislation, without any economic modelling other than what's been provided by academic experts commissioned by the ACTU, and it's a bit dubious of that. So the Department of Education, Employment and Workplace Relations did not undertake any specific economic analysis regarding this legislation that came out through the inquiry. Presumably neither did Treasury. I welcome the undertaking, though, that the Department of Education, Employment and Workplace Relations made during the committee hearings to do that work—to have a look, to gather more data once the leave is implemented—and then to review the impact of this legislation in time.

Going forward, this information is going to be critical for small and medium-size businesses to ascertain some fiscal clarity around the cost impact. It's important to note that merely doing a cost aggregate impact for small businesses ignores the fact that the sector comprises individual businesses, each of a varying size and with different challenges. We heard that this leave is going to cost the economy $50-odd million. Now, that's fine across the economy. The economy can absorb that sort of amount. But if you're the small business that employs a survivor of domestic violence, then of course that's a big impact for you, particularly if you're a small business and you've got only a number of staff and you've got to hire someone else in. We heard this time and again from witnesses who are concerned about the impact of this.

There was near agreement among stakeholders that small and medium businesses will be adversely impacted if the new entitlement is extended to casual employees, if that's what this bill is enabling. The Fair Work Act provides no precedence nor a model for a workable scheme for the provision of paid leave of any type to casual employees. There is little doubt that this bill will be costly for small businesses, more than was anticipated by the Fair Work Commission in its provisional model. This includes the concept that paid family and domestic violence leave is provided up-front, even to new employees, including casuals, rather than the usual accrual that happens pro rata if they're only part-time, as is familiar to businesses of all sizes.

In their submission to the Education and Employment Committee inquiry the Australian Chamber of Commerce and Industry highlighted what the potential cost impact would be for small businesses and what they would effectively be asked to pay for each shift: the base rate for the originally rostered employee who did not end up working due to family and domestic violence leave, a 25 per cent casual loading for the originally rostered employee who did not end up working due to family and domestic violence leave, any applicable penalty rate for the originally rostered employee who did not end up working due to family and domestic violence, the base rate for the replacement employee, a 25 per cent casual loading for the replacement employee, and any applicable penalty rate for the replacement employee. That is six separate pay components for just one shift.

For example, a casual employee of a small business, such as a country pub, a small cafe or a small pub operating under the hospitality industry general award of 2020—an employee who supplies liquor to patrons, the food and beverage attendant grade 2—is entitled to a minimum hourly rate of $21.72. And if they are a casual employee working on a Sunday, their hourly wage will be 175 per cent of their ordinary rate, taking it to $38.01. If the employee uses family and domestic violence leave for a six-hour shift, the business will be out of pocket by $228.06. They will then have to find another casual employee to fill that vacancy, costing a further $228.06. For a small pub, that's $456.12, a significant effective wage bill for a single shift of a single employee.

The government should not simply ignore these concerns raised by small business groups. Small business is one of the biggest economic drivers in this country. According to the Small Business Development Corporation, small business represents 97 per cent of all businesses in my home state of Western Australia. Other stakeholders mentioned the lack of details in this legislation regarding the reporting obligations for an employer. What happens to an employer if someone fronts up with some evidence or a disclosure of being a victim-survivor of family domestic violence? What obligations are there on that employer to go and report that to the authorities? This bill doesn't provide that clarification. I call on the government to provide clarification so that employers know, in the operation of this bill, what obligations they will have. Will there be any financial penalty? Will there be any possible criminal penalty if they don't report it? What obligations are there on businesses?

There's also unease from small businesses about how they will determine when a casual would have been working when paid domestic violence leave is taken. How will they determine what days that person would have been rostered on and, therefore, whether they should be paid at the full rate, all while ensuring underpayment is avoided for a casual employee accessing family domestic violence leave? In the end, small-business operators are just trying to run their businesses, so the government should be able to give them the details so they understand what their obligations are and what they need to be doing.

I support the provisions of this legislation. I would like to see some clarification given to employers through possible amendments to the bill or the acceptance of the coalition's second reading amendment. This is consistent with the provisional model set out by the Fair Work Commission. It builds on the legacy of the former Morrison government, which first addressed domestic violence leave back in 2018. I have outlined aspects of concern with the bill, but I hope that they can be addressed. It will impact small businesses in a way which the government has not adequately modelled, and I encourage the government to step up and provide that clarification so that employers are very clear—because I have no doubt that employers want to support those that are victims of domestic violence.