Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 1641, Greens amendments (1) to (41) on sheet 1652, and Greens amendments (1) and (2) on sheet 1653, together:

SHEET 1641

(1) Schedule 1, page 4 (after line 24), after item 15, insert:

15A Paragraph 106B(1)(a)

Omit "is experiencing", substitute "has experienced, or is experiencing,".

15B Paragraph 106B(1)(c)

After "impractical", insert "or unsafe".

(2) Schedule 1, item 17, page 5 (lines 3 to 8), omit the note, substitute:

Note 1: Examples of actions by an employee who has experienced, or is experiencing, family and domestic violence, that could be covered by paragraph (b) include (but are not limited to) arranging for the care or safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals or government services.

SHEET 1652

(1) Title, page 1 (line 2), after "paid", insert "and unpaid".

(2) Clause 1, page 1 (line 6), after "Paid", insert "and Unpaid".

(3) Schedule 1, items 2 to 5, page 3 (lines 9 to 17), omit the items, substitute:

2 Section 12 (definition of unpaid family an d domestic violence leave )

Omit "section 106A", substitute "section 106F".

3 Section 17 (note)

After "compassionate leave", insert ", paid family and domestic violence leave".

4 Paragraph 61(2)(e)

After "compassionate leave", insert ", paid family and domestic violence leave".

5 Division 7 of Part 2-2 (heading)

After "compassionate leave", insert ", paid family and domestic violence leave".

(4) Schedule 1, item 13, page 4 (line 20), omit "entitlement in subsection (1)", substitute "entitlements in subsection (1) and subsection 106F(1)".

(5) Schedule 1, page 6 (after line 2), after item 20, insert:

20A After Subdivision CA of Division 7 of Part 2-2

Insert:

Subdivision CB — Unpaid family and domestic violence leave

106F Entitlement to unpaid family and domestic violence leave

(1) An employee is entitled to 4 days of unpaid family and domestic violence leave in a 12 month period.

(2) Unpaid family and domestic violence leave:

(a) is available in full at the start of each 12 month period of the employee's employment; and

(b) does not accumulate from year to year; and

(c) is available in full to part-time and casual employees.

(3) For the purposes of subsection (2), if an employee is employed by a particular employer:

(a) as a casual employee; or

(b) for a specified period of time, for a specified task or for the duration of a specified season;

the start of the employee's employment is taken to be the start of the employee's first employment with that employer.

(4) The employee may take unpaid family and domestic violence leave as:

(a) a single continuous 4 day period; or

(b) separate periods of one or more days each; or

(c) any separate periods to which the employee and the employer agree, including periods of less than one day.

(5) To avoid doubt, this section does not prevent the employee and the employer agreeing that the employee may take paid or unpaid leave in addition to the entitlements in subsection 106A(1) and subsection (1) of this section to deal with the impact of family and domestic violence.

106G Taking unpaid family and domestic violence leave

The employee may take unpaid family and domestic violence leave if:

(a) the employee has experienced, or is experiencing, family and domestic violence; and

(b) the employee needs to do something to deal with the impact of the family and domestic violence; and

(c) it is impractical or unsafe for the employee to do that thing outside the employee's work hours.

Note 1: Examples of actions by an employee who has experienced, or is experiencing, family and domestic violence, that could be covered by paragraph (b) include (but are not limited to) arranging for the care or safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals or government services.

Note 2: The notice and evidence requirements of section 107 must be complied with

Note 3: For the meaning of family and domestic violence and close relative, see subsections 106B(2) and (3).

106H Confidentiality

(1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.

(2) Nothing in this Subdivision prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Note: Information covered by this section that is personal information may also be regulated under the Privacy Act 1988.

106J Operation of unpaid family and domestic violence leave and leave for victims of crime

(1) This Subdivision does not exclude or limit the operation of a law of a State or Territory to the extent that it provides for leave for victims of crime.

(2) If an employee who is entitled, under a law of a State or Territory, to leave for victims of crime is also entitled to leave under this Subdivision, that law applies in addition to this Subdivision.

(3) A person who is a national system employee only because of section 30C or 30M is entitled to leave under this Subdivision only to the extent that the leave would not constitute leave for victims of crime.

Note: Leave for victims of crime is a non-excluded matter under paragraph 27(2)(h).

106K Entitlement to days of leave

What constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of sections 72A and 85 and Subdivisions B and C.

(6) Schedule 1, page 6 (after line 4), after item 21, insert:

21AA At the end of subsection 107(3)

Add:

; or (e) if it is unpaid family and domestic violence leave, and the employee has met the requirement specified in paragraph 106G(a)—the leave is taken for the purpose specified in paragraph 106G(b), and the requirement specified in paragraph 106G(c) is met.

(7) Schedule 1, item 22, page 6 (line 8), after "Paid", insert "and Unpaid".

(8) Schedule 1, item 22, page 6 (line 13), after "Paid", insert "and Unpaid".

(9) Schedule 1, item 22, page 6 (line 22), omit "paid".

(10) Schedule 1, item 22, page 7 (line 29), omit "paid".

(11) Schedule 1, item 22, page 8 (lines 26 and 27), omit paragraph 53(2)(b), substitute:

(b) the provisions of Subdivision CB of Division 7 of Part 2-2 as inserted by Schedule 1 to the amending Act;

(c) section 107, to the extent that it relates to taking leave under either of those Subdivisions.

(12) Schedule 2, item 1, page 9 (line 9), after "violence leave", insert ", unpaid family and domestic violence leave".

(13) Schedule 2, item 1, page 9 (line 13), omit "paid".

(14) Schedule 2, item 3, page 9 (line 23), after "paid family and domestic violence leave", insert ", unpaid family domestic violence leave".

(15) Schedule 2, page 10 (after line 8), after item 5, insert:

5A At the end of subsection 106J(1)

Add:

Note: Leave for victims of crime is a non-excluded matter under paragraph 27(2)(h).

5B Section 106J (note)

Repeal the note, substitute:

Note: To the extent that leave would constitute leave for victims of crime, the entitlement to paid family and domestic violence leave is extended to the persons mentioned in subsection (3) by Division 2A of Part 6-3 (see subsection 757B(2)).

(16) Schedule 2, item 7, page 10 (line 16), omit "paid".

(17) Schedule 2, item 8, page 11 (line 2), at the end of the paragraph beginning "Division 2A extends the entitlements to paid", add "and unpaid family and domestic violence leave".

(18) Schedule 2, item 9, page 11 (lines 5 and 6), omit the heading to Division 2A, substitute:

Division 2A — Extension of entitlements to paid family and domestic violence leave and unpaid family and domestic violence leave

(19) Schedule 2, item 9, page 11 (lines 16 and 17), omit "an entitlement to paid family and domestic violence leave", substitute "entitlements to paid family and domestic violence leave and unpaid family and domestic violence leave".

(20) Schedule 2, item 9, page 11 (lines 21 and 22), omit the heading to section 757B, substitute:

757B Extending family and domestic violence leave entitlements

(21) Schedule 2, item 9, page 11 (line 24), omit "Subdivision CA", substitute "Subdivisions CA and CB".

(22) Schedule 2, item 9, page 12 (after line 4), after note 1, insert:

Note 1A: Subdivision CB of Division 7 of Part 2-2 provides for unpaid family and domestic violence leave.

(23) Schedule 2, item 9, page 12 (after line 20), after subsection 757B(2), insert:

(2A) To the extent that a person would not be entitled to leave under Subdivision CB of Division 7 of Part 2-2 because of subsection 106J(3), the provisions of Subdivision CB of Division 7 of Part 2-2, and the related provisions identified in subsection (3), apply in relation to the person, and the person's employer, as if subsection 106J(3) were omitted.

Note: Subsection 106J(3) has the effect that a person who is a national system employee only because of section 30C or 30M is not entitled to leave under the Subdivision to the extent that the leave would constitute leave for victims of crime.

(24) Schedule 2, item 9, page 12 (lines 23 and 24), omit "Subdivision CA of Division 7 of Part 2-2 as it applies because of subsections (1) and (2)", substitute "Subdivision CA of Division 7 of Part 2-2 as it applies because of subsections (1) and (2), or Subdivision CB of Division 7 of Part 2-2 as it applies because of subsections (1) and (2A)".

(25) Schedule 2, item 9, page 12 (line 31), after "Subdivision CA", insert "or CB".

(26) Schedule 2, item 9, page 13 (line 2), omit "paid".

(27) Schedule 2, item 9, page 13 (line 4), omit "paid".

(28) Schedule 2, item 9, page 13 (line 5), omit "Subdivision CA", substitute "Subdivisions CA and CB".

(29) Schedule 2, item 9, page 13 (line 9), omit "Subsections (1) and (2)", substitute "Subsections (1), (2) and (2A)".

(30) Schedule 2, item 9, page 13 (line 12), omit "paid".

(31) Schedule 2, item 9, page 13 (line 14), omit "paid".

(32) Schedule 2, item 9, page 13 (line 18), omit "paid".

(33) Schedule 2, item 9, page 13 (line 22), omit "paid".

(34) Schedule 2, item 9, page 13 (line 29), omit "paid".

(35) Schedule 2, item 9, page 14 (line 1), omit "paid".

(36) Schedule 2, item 9, page 14 (line 6), omit "paid".

(37) Schedule 2, item 9, page 14 (line 14), omit "paid".

(38) Schedule 2, item 9, page 14 (line 20), omit "paid".

(39) Schedule 2, item 9, page 15 (line 4), omit "paid".

(40) Schedule 2, item 9, page 15 (line 9), omit "paid".

(41) Schedule 2, item 11, page 15 (line 18), omit "paid".

SHEET 1653

(1) Schedule 1, page 6 (after line 4), after item 21, insert:

21A After section 351

Insert:

351A Experiencing family and domestic violence

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because the person has experienced, or is experiencing, family and domestic violence.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) For the purposes of subsection (1), the following provisions apply as if any reference in the provisions to a national system employee were a reference to an employee, or a prospective employee, within the meaning of this Part:

(a) subsections 106B(2) and (3) (which define family and domestic violence and close relative);

(b) any provisions of this Act that define (directly or indirectly) expressions that are used in subsections 106B(2) and (3).

Note: This subsection applies to express references to national system employees, and to references that are to national system employees because of section 60 or another similar section.

21B Subsection 539(2) (cell at table item 11, column 1)

After "351(1)", insert:

351A(1)

(2) Schedule 1, item 22, page 8 (after line 30), at the end of Part 12, add:

53A General protections relating to family and domestic violence

(1) Section 351A, as inserted by Schedule 1 to the amending Act, applies in relation to an action taken on or after the commencement of that Schedule.

(2) This clause has effect despite clause 52.

I will briefly speak to these amendments. The first set, on sheet 1641, are minor amendments to the definitions and to the notes to clarify the eligibility for family and domestic violence leave. We welcome the bill's existing amendments to provide more examples of activities that would justify taking family and domestic violence leave. However, submitters like the Women's Legal Service, the Law Council and a few others told us that more clarity would help victims-survivors and employers.

The amendments we have proposed to provide that clarity mean that leave would be available not just to those who are currently experiencing but to those who have experienced family and domestic violence. This responds to concerns from the Law Council that victims-survivors may need to access leave over a long period of time related to the same abuse. Even after an employee has escaped an abusive relationship and is no longer directly experiencing the violence, they might still need leave to attend court hearings or counselling or related medical appointments.

The amendment I'm moving will also clarify that an employee can access leave to undertake activities that are unsafe for them to do outside of work hours. That expands the bill's existing provision which relates to activities that are impractical to undertake other than outside of work hours. This amendment says it could also be unsafe. Safety is a key issue in matters of keeping women free from violence. We think that's an important addition that would provide that reassurance. Also, we would like the note to be expanded so that the examples provided of the sorts of things for which you can seek to access the leave are nice and clear and give employees the reassurance, and employers the guidance, on the sorts of activities that might be permissible.

That's our first set of amendments, on sheet 1641, which, for some reason, the government have said they won't support—although, frankly, they have absolutely no reason not to support it because it's a technical clarification amendment. I would urge them to rethink their opposition to that amendment. This is very simple and would be worthwhile doing.

The second set of amendments, on sheet 1652, recognises the fact that 10 days paid leave won't always be enough to do all the things that are needed. This proposal would allow for additional unpaid leave days on top of the 10 days paid. The reason for that would be, as I've said, to ensure that workers have enough time to do the things they need to do. Also, that would reflect the best practice minimum standards in other jurisdictions. I am told that the government doesn't support those ones either, although, again, we wish they would.

The final set of amendments, on sheet 1653, is another set of amendments that I think the government should give serious consideration to supporting. It would insert a new provision into the Fair Work Act to make experiencing, or having experienced, family and domestic violence a protected attribute. This is critical to preventing workplace discrimination against employees who disclose family and domestic violence. The whole objective of paid family and domestic violence leave is to drive cultural change and destigmatise disclosure. This set of amendments naturally supports that by ensuring employees who disclose family and domestic violence aren't then sacked or discriminated against for doing so. They are the substance of the three amendments that the Greens are seeking to move, and we urge the government not to wait for some review of this bill to consider those sensible amendments but just make them now.