Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

When we hit the hard marker, Senator Cash had just asked a couple of questions. I've got some answers to those. I'd also like to clarify some evidence I provided earlier, now that we've had an opportunity to consider some of those matters further.

To begin with, I wish to clarify one of the things I said earlier regarding an employer's ability to recoup any family and domestic violence leave paid where it becomes apparent the employee was a perpetrator and was not entitled to paid family and domestic violence leave. As I stated, employers would be able to recover these payments. However, as for other entitlements under the Fair Work Act, recovery would be for a debt owed to the employer. This is because a payment will have been made that the employee was not entitled to. So, in that situation, the employer's right to recover would be similar to other overpayments of entitlements under the act, such as for allowances, salary errors and so forth. No provisions are required in the Fair Work Act to enable this. I also wish to clarify that the regulator for Fair Work is the Fair Work Ombudsman, and civil penalties will ultimately be decided by a court. I misspoke in my answer regarding penalties for pay contraventions and referred to the Fair Work Commission; it will be the Fair Work Ombudsman.

Also, Senator Cash, earlier today, asked this question—this is essentially what I think the question was: if an employer were to call a casual employee asking what days they are available for work but does not specify the times the employee would be offered work, would the casual employee be entitled to paid family and domestic violence leave and how would the rate of payment for paid family and domestic violence leave be calculated in these circumstances? The advice I've received is that, in those circumstances, the casual employee has not been rostered to work and has neither been offered nor accepted a shift, and therefore the entitlement to paid leave would not arise in those circumstances. The amount of pay they would be entitled to would therefore be nil. However, the casual employee would be able to take family and domestic violence leave without pay if they wished to do so.

If the employer is simply testing the employee's potential availability to work, this would not be regarded as rostered hours and the employee would not be entitled to payment for the leave. If a casual employee needs to take time off to deal with the impact of family and domestic violence on a day they have not been rostered for work, the workplace right to take the leave and be absent from work to deal with the impact of domestic violence can still be accessed but the employer would not be required to pay the employee for the unrostered hours. The term 'rostered hours' is intended to take its ordinary meaning. This acknowledges that businesses have a wide range of rostering systems according to their usual practices and human resource capabilities. Most commonly, it will be a situation where the employer makes available a list or plan of shifts to be undertaken by an employee.

Section 106BA(2) further clarifies that, without limiting the ordinary meaning of 'rostered hours':

… an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours.

Offer and acceptance, as Senator Cash would be aware, is a long-established common law principle. There's no set form to establish offer and acceptance. The offer and/or acceptance can be in writing or via text message or verbally, such as over the phone or during a team meeting. Hopefully, that clarify some of the questions at least.