Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I am in continuation. They may have been unable to access such entitlement unless it is provided in their agreement. Cognisant of this, in December 2018, the former coalition government passed historic legislation enshrining five days unpaid family and domestic violence leave in the National Employment Standards. The former coalition government's reforms matched the decision of the Fair Work Commission for award reliant employees. Reducing this complexity was welcomed by and has been beneficial for businesses, as it reduced the time that businesses spend having to ensure the appropriate allocation of leave.

In May 2022, the Fair Work Commission handed down its decision, recommending 10 days paid family and domestic violence leave for award employees. The Fair Work Commission's decision was reached after consideration of evidence, and was based on the input and advocacy of a range of unions and employer representative bodies. In its decision, the Fair Work Commission recommended inter alia (1) full-time employees and, on a pro rata basis, part-time employees, should be entitled to 10 days paid family and domestic violence leave per year but that this should not extend to casual employees; (2) the entitlement should accrue progressively across the year in the same way as personal or carer's leave accrues under the National Employment Standards, not up-front; and (3) the entitlement should operate on the basis that it is paid at the employee's base rate of pay as defined in section 16 of the Fair Work Act, not at the full rate of pay. Consistent with the decision of the former coalition government, the Fair Work Commission's entitlement should be enshrined in the National Employment Standards to ensure, as far as possible, consistency in entitlements for employees in the national system and to reduce complexity for business.

The bill before us goes beyond the model recommended by the independent Fair Work Commission and implements much of the claims made by the ACTU during the hearing into the matter. There is a need to recognise that many business stakeholders, while supporting the Fair Work Commission's decision and the enshrining of that model in the National Employment Standards have raised concerns in relation to the areas that differ in the government's bill from the Fair Work Commission model. The government's legislation goes further than the Fair Work Commission's model in the proposed way: (1) it provides 10 days of paid family and domestic violence leave in a 12-month period for casual employees; (2) in relation to the accrual, employees would gain 10 days of paid family and domestic violence leave from the commencement date of 1 February 2023, rather than having it accrue like other leave entitlements; and (3) it provides for employees to access paid family and domestic violence leave at their full rate of pay for the hours they would have worked had they not taken the leave, as opposed to their base rate of pay.

In relation to these issues, the Fair Work Commission considered all the issues proposed in this bill. Many, as I said, were put forward by the ACTU. In reaching its decision, the Fair Work Commission clearly did not support the breadth of the ACTU proposal; in fact, in its decision found against them. The full bench stated:

Compared to the ACTU claim, the provisional model term provides better alignment with existing NES entitlements and will have less impact on business in terms of employment costs and the regulatory burden.

I will now turn to where this bill differs from the proposed model put forward by the Fair Work Commission. In relation to the accrual of leave, the Fair Work Commission said that the entitlement of 10 days paid family and domestic violence leave per year should accrue progressively during a year of service in the same way as for personal or carer's leave under the National Employment Standards.

In relation to the extension to casual employees of the 10 days of paid family and domestic violence leave in a 12-month period, the Fair Work Commission did not recommend this as the National Employment Standards do not extend paid leave to casuals. The Fair Work Commission also said that the Fair Work Act provides no precedent, nor a model, for a workable scheme for the provision of paid leave of any type to casual employees. There are significant operational difficulties in extending paid family and domestic violence leave to casuals, as noted by the independent Fair Work Commission and even acknowledged by the ACTU during the hearings. In fact, the ACTU said this:

The ACTU accepts that there are some operational challenges associated with extending paid FDV leave to casuals, including in relation to those casual employees whose hours of work are genuinely uncertain.

What the Fair Work Commission said in relation to casuals is extremely important to note. This is because the Labor government is fundamentally changing the way the Fair Work Act deals with paid leave and casual employees. As the Fair Work Commission said, the Fair Work Act provides no precedent, nor a model, for a workable scheme for the provision of paid leave of any type to casual employees.

Casual workers are often paid a casual loading to compensate them for the lack of entitlements they receive, such as holiday pay and sick leave. Casual loading is extra money paid to casual workers over and above the normal hourly rate that full-timers or part-timers get paid in the same job. Even the ACTU acknowledged that there are significant operational difficulties in extending paid family and domestic violence leave to casuals, as noted by the Fair Work Commission decision.

In relation to the rate of pay, the independent Fair Work Commission—and this is important because, again, this is the independent Fair Work Commission that conducted hearings into this matter and have made their own comments in relation to the model that they have put forward—have stated it should be based upon the employee's base rate of pay, not their full rate of pay, in the same fashion that the National Employment Standards paid leave entitlement operates. Again, the independent Fair Work Commission itself contended it would be overly disruptive to the integrity of the safety net if it were to depart from the way all other paid leave entitlements operate which the National Employment Standards provide. The Fair Work Commission also noted that the Fair Work Act applies this rationale even to needs based leave entitlements, such as personal or carer's leave.

In that respect, concerns have been raised by businesses and employers. Businesses and employer stakeholders, in the main, limited their support to the terms set out by the independent Fair Work Commission in their model for paid domestic and family violence leave. In other words, they agree to the enshrining of 10 days of paid family and domestic violence leave in the National Employment Standards to ensure a consistency of entitlements for employees. They have, however—and this was articulated through the committee process but also at the hearings undertaken by the independent Fair Work Commission—raised significant concerns about the Labor government's departure from the independent Fair Work Commission's proposed model, which, as I have indicated, goes much further than the independent Fair Work Commission's model and, in effect, picks up the claims put forward, albeit dismissed by the independent Fair Work Commission, by the ACTU.

The Ai Group states:

The proposed legislation departs from the carefully considered approach proposed by the Commission in various ways that undermine its workability and reasonableness. It instead adopts elements similar to the ACTU proposal that the Commission had rejected.

The Bill should be amended to reflect the sensible and considered views of the Commission.

Unlike the approach adopted in the proposed legislation, the Commission envisaged that the new 10-day entitlement should apply to permanent employees rather than casuals; be calculated on a pro-rata basis for part-time workers; and should accrue progressively during an employee's first year of employment unless an employer agreed to grant it in advance.

The Commission also proposed that employees should be paid their base rate of pay when accessing the leave. This is the approach taken when an employee accesses personal / carer's leave. The Bill would instead require employers to pay employees amounts including penalty rates, overtime rates and various allowances when they access the leave.

In summation, the Ai Group says this:

This Bill will be much more costly for employers than the approach proposed by the Commission and there are significant questions about how the rate of pay that must be provided to an employee could even be calculated in practice.

The Australian Chamber of Commerce and Industry, which represent, in particular, small and family businesses throughout Australia, raised similar concerns to the Ai Group. Again, they are more than happy to adopt the model put in place by the Fair Work Commission. They, in particular, noted that family and domestic violence leave should accrue progressively but not accumulate from year to year. They said that providing paid leave upfront will have practical consequences, in particular for small and medium-size businesses with limited cash flow and cash reserves.

Then we have the Council of Small Business Organisations Australia, which, in particular, wanted the needs of all micro and small businesses considered by the government. They said that many small businesses do not possess the requisite knowledge, resources and expertise to provide support to their workers at the very time when they are reaching out for help. We need to be mindful of how small business owners will work through compliance in these situations and provide them with the appropriate information and support where and if required.

As we know, the bill was canvassed in detail at a Senate inquiry. In terms of the outcome of that Senate inquiry, coalition senators did provide additional comments. Those additional comments very much went to the areas of the bill where the Labor government has accepted the ACTU's claims and has gone beyond the decision of the Fair Work Commission. Obviously, we will explore this in further detail during the committee stage.

What I therefore propose to do, and what I do foreshadow, is that the coalition will move a second reading amendment. Again, the coalition notes the rationale provided by the independent Fair Work Commission in handing down its model for 10 days paid family and domestic violence leave. But, at the same time, we also acknowledge the concerns raised by businesses and employers, and, in particular, by small and family businesses around the country in relation to the provisions of the bill that go beyond the Fair Work Commission's recommended model. These issues must be worked through with employers, in particular small business employers, prior to the commencement of this new entitlement. I move the second reading amendment on sheet 1646:

At the end of the motion, add ", but the Senate:

(a) notes that employers may become aware that an employee is experiencing family and domestic violence when accessing paid family and domestic violence leave; and

(b) calls on the Government to:

(i) publish clear and comprehensive guidance to assist employers in understanding any obligations that they may have to inform authorities that an employee is experiencing family and domestic violence,

(ii) clarify its intent regarding whether perpetrators are able to access paid family and domestic violence leave,

(iii) provide greater details about the impact of the introduction of paid family and domestic violence leave on small and family businesses, particularly those that employ casual workers, and

(iv) provide resources to ensure that small and family businesses are not:

(A) adversely affected by the administration of the scheme, or

(B) worse off financially".

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

I rise to support the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. The Greens have been calling for paid family and domestic violence leave for years. We know that it helps victims-survivors, who are predominantly women, to escape abusive relationships, protect themselves and their children and rebuild their lives. Access to this leave could quite literally save their lives. Without a paid leave entitlement, taking the time needed to escape could cost a victim-survivor their job. Without a job, they can't afford to escape or recover. No-one should have to choose between their safety and their job.

The current scheme of five days unpaid domestic and family violence leave was a welcome recognition that family and domestic violence affects someone in most workplaces, but unpaid leave was never adequate. It put women at financial risk and, worse, a drop in income could be a red flag to their abuser and put them at further risk of violence. Paid domestic and family violence leave is the best way to support employees to manage the impact of their abuse, to end the violence, to keep their kids safe, to recover and to keep them employed. We commend the government for extending paid leave entitlements to casuals and making it available in full for all employees, so they can process and access paid leave when they need it, or when the opportunity to escape arises.

I flag that we will be moving some minor amendments to ensure that the bill covers the full scope of activities that a victim-survivor needs to undertake to be safe and secure, and we will also be moving some other technical and relatively minor amendments. I understand that the government may not be of a mind to support these amendments, but we urge them to do so and to consider these proposals in any future review of the bill.

In relation to evidentiary requirements, as the minister outlined, the bill doesn't change the existing provisions of the Fair Work Act about evidence, including not changing the confidentiality of any information provided by employees. The burden of producing sensitive evidence of violence to your boss or to HR can be a deterrent to employees and can allow employers to make it difficult to access leave. The simple and horrifying fact is that most workplaces have at least one employee who is experiencing family and domestic violence. There is a lot of work to be done at both a societal and a workplace level to destigmatise disclosing abuse and to strengthen the supports that are available.

Employees must have confidence that their employer will support them if they disclose and will respect and protect their privacy. Without these assurances, employees will be reluctant to access leave that could save their lives. Given the stigma that is still attached to disclosure, a supportive workplace culture should start from a position of believing an employee who has taken the brave step of asking for family and domestic violence leave. If evidence is requested, employers should be flexible about what evidence they will accept and have a clear process to protect the privacy of their employee.

The Australian Greens do recognise the cost implications of introducing a paid leave scheme and that this can have a significant impact for a small business. But the reality is that small business is already managing the impact of family and domestic violence on staff: those experiencing violence, those covering their shifts as they take the leave needed to escape and recover and staff who leave the business because it doesn't offer them the necessary support. The experience of employers who are currently voluntarily offering paid leave has been that the financial impacts are minimal but the positive benefits, in terms of staff morale and retention, are significant. The Greens support the government providing resources, training and support to small business to assist them to implement paid family and domestic violence leave provisions, and for that to be reflected in the upcoming budget. The impacts on small business could and should be considered as part of the review of the operation of this bill so we can identify any ways to break down barriers to accessing leave.

I want to make an additional point: leaving an abusive relationship takes time. It often takes many attempts; it takes many hours and there are estimates that it takes around $18,000 to escape. Family and criminal law proceedings can be lengthy, and staying safe and recovering from trauma is a very long project. Ten days paid leave will not always be enough. Best practice is to provide unlimited leave, or at least 14 days, and I note that the New South Wales public sector is now offering 20 days of paid leave. I'll be moving an amendment to provide four additional unpaid days of family and domestic violence leave in addition to the 10 paid leave days for those who need that extra time to keep themselves and their children safe. Again, I flag that I don't imagine there will be support for that amendment, but it's an important issue that should be discussed both here and in any subsequent review of this bill.

Now, we heard concerns that employees who disclose family and domestic violence at work could be discriminated against by losing their job or losing hours of work. This must be addressed. I will also be moving an amendment to the bill to protect employees who disclose family and domestic violence or who seek leave from unfair dismissal because of that disclosure.

Finally, the paid family and domestic violence leave scheme will only succeed if the services that are needed to support victims-survivors and employers working with the scheme have the funding to meet demand. Paid family and domestic violence leave will provide time to seek help, but many of the services that women are seeking help from already have to turn people away because they simply don't have the staff to take on additional cases because they don't have the funding for the staff or the funding for the beds.

Employers need to know that they can refer employees who've disclosed family and domestic violence to services that will pick up the phone, that have a bed available if they need it. So I foreshadow that I will be moving a second reading amendment that acknowledges this, and that—again, for the umpteenth time in this place—calls on the government to provide adequate funding to frontline services in the budget so that everyone who reaches out for help can receive help. We know that means $1 billion a year to frontline response and prevention services.

We also need to lift income support payments so women without work have the financial security to leave abusive relationships, and we desperately need to address the housing crisis so women fleeing abuse can find somewhere to live. This bill is a huge step in the right direction, and it's the culmination of many years of advocacy by unions and by women's organisations. The Greens have long supported paid family and domestic violence leave, and we are delighted to support this bill. We hope that our amendments to further strengthen the scheme succeed. If they don't succeed today then we'll be supporting a review of this bill to look at additional ways to ensure that employees are given the lifeline they need to escape violence and to start to rebuild their lives.

Nita Green (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, and making it the law of the land. I'm incredibly proud that the Labor government has prioritised this legislation.

I want to start my speech by talking to survivors—particularly, in this instance, to parents. In my first speech in this place I spoke about my mum. I said then, and I say now, that I wouldn't be here today without her and her sacrifices. In my first speech I spoke about how mum protected us. I told the story of the night that we left, how she walked us the long way around the block while explaining to me, as a very young child, that this way we wouldn't be seen by the man that we were fleeing. This was the first night that we left, but we went back. It took 10 more years before we left for good. I don't know but I can only guess how hard that must have been for her, explaining to her young daughter and her son in a stroller something so painful and complex in a way that we could digest. I have no memory of the moments before that conversation on the street. I recall feeling safer there with her in the dark than inside of our home.

Finding strategies to protect your children from the ugliness of family violence is a trauma we don't measure or account for. It is hard to measure the trauma felt by children who learn too early in life what it feels like to be unsafe in their own home. Mother-victims find narratives for their children in their best efforts to help them understand. It is a delicate narrative to tell, one that works hard to comfort them and at the same time instructs them on what is okay as they move out into the adult world. For a victim-survivor, this is a lot to carry—to be protecting yourself, your children, and finding a way to talk about it that can explain what is happening right now but also what will make sense in the future. It is just an impossible feat.

Those who are lucky enough to build a life beyond the abuse have the unenviable task of both starting from scratch and explaining what happened in a way that kids can understand throughout their stages of development. It is hard and often lonely, unenviable work. In the words of the excellent First Nations Queenslander Thelma Plum, in a song from her Better in Black album, 'She really made the best of it.'

What victims need when building a life out of abuse is security. This proposal, originally a union claim in the workplace to provide paid domestic violence leave, provides that security to survivors. It tells survivors that the people they spend the most time with, their colleagues, have their back. As a government, we are building on existing entitlements to make sure that it's closer to what workers, the experts, are telling us is effective. I want to congratulate the campaigners, the organisers and the advocates who have delivered and held the standard for decades.

We on this side of the chamber know that meaningful reform was almost always built through workplace organising. There are workplaces out there to whom this makes no difference, not because they are lucky but because they are united. When workplaces are united, they put measures in place to make sure that, when one of them falls through the cracks, the rest are there to protect. These protections shouldn't be for workers to defend each time they bargain with their boss for a pay rise. These protections should be universal, because they work.

It is unacceptable currently that workers have to face this impossible choice—a choice between keeping their jobs and escaping abuse, a choice between turning up for your shift or packing your things, a choice between filling out your timesheet or filling out a rental application. We shouldn't make victims choose between their jobs and their survival. In our communities, we are already there. We know victims need help and we rally. It only makes sense to enshrine this kindness, this practical generosity, into workplace relations. This is an urgent crisis. Labor's legislation makes sure that there is one less difficult factor in the equation. This legislation brings the law of the land in line with the way kind and decent co-workers already treat victims of violence.

I am so proud of this Labor government that has made this a priority. I am so proud of workers and union members who have campaigned for so many years. I'm so proud of survivors who have spoken up about what they need, because we know that this legislation will save lives. There's absolutely no question about that. This is a victory for tough, smart social workers, who saw a human problem and fought for a legislative solution. This is a victory for survivors, many of whom are my friends. I say thank you to you. Thank you for your defiance and your dignity. To the parents, like my own mum, we offer this small moment of progress. Slow as it is, we are finally delivering it. We know that we all have our own narratives and strategies and our own hopes. We all know ours far too well. For me, my mum's refrain is a source of dignified inspiration. She would say that tough times don't last forever.

I return to the words of Thelma Plum to finish my contribution: 'We were better off without you'.

Susan McDonald (Queensland, National Party, Shadow Minister for Resources) Share this | Link to this | Hansard source

I rise to speak about the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. I want to start by acknowledging the words of Senator Green. My heart goes out to all of those families who have been the subject of a what is truly the most awful scourge of our modern-day lives. It's not a new one, of course. I believe that domestic violence victims deserve support. I believe that support should be better targeted than what this is proposing. But, mostly, I want to talk about the impact on small businesses.

There's been talk already of the work that small businesses are doing to support employees who are the subject of an awful act of violence against them and their children. These small businesses are already providing both paid and unpaid leave. But, importantly, during the last government, it was the government who paid a cash component as well as an in-kind component. What this legislation does is once again shift society's responsibilities and demands for action to the people least able to support it. I don't speak of government. I don't speak of big corporate employers. I speak of the 42 per cent of jobs that are created in this country by very small businesses, by mums and dads who often pay everybody else before they receive anything. These small businesses are already struggling with increased electricity prices, increased superannuation payments, the increased cost of living and increased transport costs. There are myriad costs that are being put upon small businesses, whose margins are becoming thinner and thinner.

Last weekend, I spoke to a primary producer, a fisherperson who has a fleet of boats that go out. Of those five boats, one is tied up on the wharves currently due to a workforce shortage because those opposite don't believe in an agriculture visa. They don't understand that, when they pay $15,000 per employee to come into this country, they then have a responsibility to chase them down when they abscond to a cash-paying business. These small businesses are in tears. They are on their knees. They tell me they cannot wait to get out of this employment trap, because they are earning less and less, they have mortgaged their homes and they have a huge amount of stress riding on them. What has this government done? It has taken what was working previously, a situation where government was stepping up to the plate on the responsibility that it rightly has to support victims of domestic violence, with the contribution of small businesses, and smashed its way through the hopes, dreams and capability of 42 per cent of the jobs in this country.

What we're saying to small business operators is: 'Here is one more responsibility for you. We ask you to collect PAYG tax. We ask you to collect child custody support. We ask you to collect superannuation. We ask you to train apprentices. We ask you to support your employees in every way.' But now we also are demanding not only that they have 10 days of paid leave for victims of domestic violence but also that that be extended to casual workers, who already receive 25 per cent loading on their payment.

I do not say this to be cruel or heartless. I'm trying to explain to those opposite, who may or may not have run a business, that the very thin margins for small businesses have been further eroded. What role are we going to provide to assist them? For the perpetuators of domestic violence, what education systems are we putting in place? We know the small business operator cannot counsel their employees about these things. That's an outside-of-work industrial relations matter. They cannot censure their employee who they understand is perpetuating domestic violence. We're giving to the business all the responsibility, accountability and cost but no tools.

What happens when that domestic violence victim comes to their employer and has to identify that they're a victim of domestic violence? I wish this could be called something else. I wish, like the hundreds of people write to me, that this could be called emergency leave or something else that allows employees not to be identified as victims. But, when those people have identified that, what sort of support will the employer be given? In the most awful example where there has been a tragedy, is the employer then responsible for notifying the police? Is the employer taking a legal liability in having been aware of domestic violence but not having reported it? Will they somehow be held accountable in that terrible crime? This is a very serious matter that we are discussing. Nobody disputes that we should be doing everything we can to support family members in the awful situation of being trapped in their own homes in an unsafe environment—nobody disputes that—but we have to be certain that we're not creating a new set of burdens for the people who are now forced to carry that.

Further to what Senator Cash was raising, the Fair Work Commission did consider all the issues proposed in the bill, some of which were put forward by the ACTU—not an employer but a representative of employees. In the 2021 inquiry the question of what workplace leave should be available to victims of family and domestic violence was considered in extensive detail. In reaching its decision, the Fair Work Commission clearly did not support the breadth of the ACTU proposals and found against them. The full bench said that compared to the ACTU claim the provisional model term 'provides better alignment with existing NES entitlements and will have less impact on business in terms of employment costs and the regulatory burden'. So the Fair Work Commission are supported sometimes by the government, but when they make a very sound argument for not extending this to casual employees they are completely disregarded. Even the ACTU acknowledged that there are significant operational difficulties in extending paid family and domestic violence leave to casuals, as noted by the Fair Work Commission. Remember, Madam Acting Deputy President, there is no HR department in these businesses. There is no extensive network of administration, form-fillers and so forth. These are the men and women who go home at night and do all of that in their own time. This responsibility—asking people to hold all the reins of running a business and paying their employees, and potentially to take on additional legal liability—is incredibly concerning.

It is also most concerning to read in the explanatory memorandum that there will be no cost to government. Of course there's no cost to government, because it has been passed on to somebody who has not perpetrated the violence, who has not done this to families! It's the small-business operator who'll pay the price. If, at the end of the day, there are any small-business operators left in this land, I will be surprised, because this government, with every single cost impost and regulatory burden, shows it has no regard for them. It is incredibly distressing. I wish those opposite would go and speak to small-business operators. I wish those opposite would go and explain to them exactly what it is that this legislation will do. Perhaps, then, they will see the additional despair in those people's eyes, those people who are saying, 'I'm going to walk away from fishing,' 'I'm going to walk away from my small business,' 'I will no longer have apprentices in this business,' and 'I'm carving my business down to a size that I do not have to continue taking on the cost and responsibility that is society's, rightly.' This is society's burden. We acknowledge that. Everybody understands that. We must do more.

This bill is not about addressing the perpetrators of domestic violence. It is not about additional housing. It is not about additional programs. It is not even about a very smart communications program. It is about saying to small-business operators, 'You will bear the cost of these outrageous and egregious crimes.' So I support the 12-month review following on from this legislation. I'm very keen to see the cumulative impact on small businesses. I want to urge the government to, instead, continue to build on the work of the former coalition government in implementing strategies to prevent domestic violence and to support victims.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I rise to speak in support of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. The rate of family and domestic violence in Australia is appalling. So far this year, 41 women and 31 children have been murdered. Countless more have been subjected to other forms of coercive control, injury, physical, emotional and financial abuse. I wish we didn't need this leave but, unfortunately, for now, we do.

It's critical to support people who need time to deal with the effects of experiencing family and domestic violence. Whilst this needs to be part of a much bigger conversation, in our communities, in our society, about family and domestic violence, the way that we are treating each other and the way that men are perpetrating violence against women, in the short term it's clear that we need this support, to allow women to get the support that they need to be able to take time off work to deal with the huge number of challenges that come with going through something like this. I commend the government on bringing forward this bill. It is an important first step.

In wanting to hear from my community, in August I convened a roundtable discussion at the ANU of business, unions, experts in this field, community organisations and frontline service providers to go over the draft legislation. I'd like to thank them for their time, their expertise and their work in this space. The resounding message that came out of it could not have been clearer: they want this legislation passed as soon as possible. The roundtable discussion was a great opportunity to canvas views on a range of suggested amendments to the legislation as well as flagging areas for future work. I recognise and respect the good intentions of Senators Lambie and Tyrrell in moving their amendment around the naming of this leave. This is something that came up, at length, at the roundtable discussion. While there are arguments for and against, the majority view, especially from frontline service providers, was that it is necessary to retain the family and domestic violence name. I have sought and been given assurances from government that they have engaged with payroll service providers to ensure that workers' privacy is protected when accessing this leave. It's crucial that we get this right and ensure that we are protecting women who come forward to access this leave.

Another key piece of feedback that came out of the roundtable was the need to provide training and support for businesses, especially small businesses. I acknowledge just how hard it is to run a small business, particularly in the current climate with the skills and workforce shortages. A lot of small-business owners are putting in massive weeks to plug the shortages and make things work.

It's critical that the government is adequately funding frontline specialists and community organisations—organisations like the Women's Legal Centre and, here in the ACT, the Domestic Violence Crisis Service—who provide essential and, in many cases, life-saving services to those most at risk in our community. Many of them operate on short-term and inadequate funding cycles. To me it's absolutely wild that the DVCS CEO, Sue, is answering calls at 4.30 in the morning and then fronting up to run the show—to undertake advocacy, to deal with the complex and challenging casework and to deal with the myriad other tasks that come with running an organisation like that.

It's great to read that community housing organisations, Indigenous organisations and domestic violence services will receive an extra $560 million over four years in this budget. We need to continue to look at better ways to fund these services and ensure that we are tying it into the broader conversation through our communities across our society about how we drive change and deal with these issues head on.

I also welcome in the recently released National Plan to End Violence against Women and Children 2022-2032 the focus on housing. The admirable sentiments set out in this document need to be backed up with urgent investment. I hope we'll be hearing more about that in the budget. The Housing Australia Future Fund, alongside similar social and affordable housing supply measures from state and territory governments, is a good first step, but on its own it is clearly not able to keep up with demand.

Let's ensure that this is the beginning of a new approach to realise the government's commendable aspiration to end family and domestic violence in a generation. It's a very bold target—one we can all agree we should be aiming for. Family and domestic violence leave will help people experiencing violence, but there are the broader issues of how we engage Australians, how we drive societal change when it comes to attitudes towards family and domestic violence and how we provide cost-of-living relief to families, given that we know financial pressures exacerbate this sort of violence in homes across the country.

It's a huge challenge, but we were elected to not just think about this but implement plans. As parliamentarians we should be leading by example when it comes to the culture in our workplaces and in our families and we should be contributing positively to the national conversation. This issue really is a blight on all of us. Australia is not unique; this challenge is shared by communities and societies across the world. It is certainly something we should be taking seriously. I commend the government on this first step, but I acknowledge there is a huge amount more to do in this space.

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

CICCONE (—) (): I'm very proud to be here today in the Senate to debate the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. It's one of the first acts by the Albanese Labor government, and it's great to see the progress that this government is making in tackling the scourge in our society that is domestic violence. This piece of legislation demonstrates Labor's commitment to act against family and domestic violence. In Australia, sadly, one in six women have experienced physical or sexual violence. For men this number is one in 16. As elected representatives we must do everything we can in this place to reduce domestic violence in our communities and to make it easier for victims of domestic violence to escape to a safe environment.

It is quite concerning to hear the contributions by some in this place that somehow leave is a burden on businesses, which should not suffer or feel the pain of the domestic violence that is inflicted on people who are trying to flee a violent environment—usually their home. It is quite disappointing that some senators have chosen to go down that path. It would be interesting to see if they also use the same line of argument with respect to sick leave—if someone gets sick, is that somehow not something that they should be entitled to? Is paid maternity leave another type of leave that should also not be given to workers in this country? What about long service leave, annual leave and all the other sorts of leave that the union movement and the workers of this country have fought so hard for? Yet what we find is that many senators, particularly those on the other side, are making that argument to explain why they should not be supporting this piece of legislation that supports predominantly women who are fleeing domestic violence back at home.

This piece of legislation before us today establishes universal paid leave for family and domestic violence. Some 11 million Australian workers, most of them women, will be able to access this leave. This includes casuals because casuals are also entitled to leave in this country, and the 25 per cent loading just doesn't cut it when you're trying to flee a domestic situation at home. But, somehow, those opposite will put the argument to the contrary. At the moment, workers have to choose between escaping a violent situation and maintaining their financial security. Thankfully, Labor is giving them another option. This is what this bill is fundamentally about. It's about acknowledging the lack of access to paid leave, which will keep many women in dangerous situations longer, and it's about understanding that we need to take action and we need to take every step that we can to remove this barrier.

The labour movement has been pushing for this for some time. In my time as a union official with the Shop, Distributive and Allied Employees Association, we joined countless other unions in the We Won't Wait campaign. This campaign was about recognising the urgent crisis facing Australian women every week—every week a woman is killed by her partner, an ex-partner or a family member in Australia. In the face of this statistic, unions knew that we could not waste any more time in taking action. Unions had various successes in campaigning for paid domestic violence leave with individual employers or through our current awards system. What we are simply doing is affording that right to every single worker under the Fair Work Act. Every single worker in this country—whether they are under an award, under an EBA or under their own contractual arrangements with their employer—will receive this leave.

Now, with a change of government, we have the opportunity to make this a universal entitlement. I'm very pleased that, no matter their workplace, no matter where they live, no matter how they perform their duties at work and no matter if they work full time or casual, they will have a choice. They will have a choice, and they will know that there is security there—that, should they need safety and should they need security in their employment, they can put in a request for paid family and domestic violence leave.

I'm really glad to see that the Albanese Labor government is supporting casual workers. Casual workers are definitely not spared from family and domestic violence, as I mentioned earlier. In fact, women who are experiencing family and domestic violence are more likely to be employed in casual work, and I know that, having had experience in the retail sector. The vast majority of people who work in retail are women and people under the age of 25, but it's the women that are the ones who are more likely to be exposed to domestic violence. I'm really pleased to say to the many workers that I have dealt with over the years that, finally, this government is putting forward the reforms that Labor have promised for many, many years.

If we accept the basic principle that we need to do everything we can to end domestic violence then we should surely also accept that we must do everything we can not just for some but for every single Australian. That is why this bill will enshrine paid family and domestic violence leave as part of the Fair Work Act so that all Australian workers can access this entitlement regardless of where they work. Escaping a violent relationship takes time and money, with some estimates suggesting it can cost up to $20,000 and take more than 140 hours. That is why this paid leave is so important. Without this leave, too many women can't leave.

I am proud, again, to place on the record that the Albanese Labor government is treating this issue with the urgency that it deserves and requires. I congratulate everyone, particularly our minister Tony Burke and all those on the frontbench, for doing an outstanding job, as well as those in the union movement for advocating for this bill. I commend this bill to the Senate.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to 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.

Jenny McAllister (NSW, Australian Labor Party, Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

What an honour it is to participate in this debate. When we gathered in July to mark the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 over in the other place, there were a lot of tears. It showed, I think, how much this bill means to so many people. There were a lot of tears here earlier this morning as well when my colleague and friend Senator Green made her powerful, moving, personal contribution, where she spoke about the impact of violence on children who witness it and experience it and about the significance of the measures that we will put in place through passing this legislation to support people in exactly that situation.

Over the past three years, I had the real honour of visiting many dozens of refuges and services as shadow assistant minister for communities and the prevention of family violence. From Broome to Burnie, I was able to hear directly from survivors, advocates and frontline workers. What they told me was this. Many working women resign or are terminated from their employment because they need to take time to deal with issues that arise as a consequence of domestic abuse: finding housing, attending court, attending doctors' appointments and ensuring their children have the support that they need. The truth is that leaving violence takes time. It's expensive and, actually, it's often very, very dangerous. Leaving is the time when a woman is most at risk, and the situation puts women fleeing violence in a precarious position. Many face the unacceptable choice—and it is unacceptable—between fleeing to safety or staying in a job. No-one should be forced to make that decision.

That's why, from opposition, I introduced the Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 into this chamber. Those opposite opposed it then, and we wait to see how they will handle this legislation, but I am honoured to speak this afternoon in this debate. This bill will amend the Fair Work Act. It will improve the existing entitlement in the National Employment Standards from five days of unpaid leave to 10 days of paid family and domestic violence leave. It's an entitlement that will be available to a person who is experiencing family and domestic violence. I note Senator O'Sullivan's question in this regard, and I want to make this very clear: the entitlement does not provide a benefit—

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Senator McAllister, I'm sorry to interrupt you, but, it being 1.30, we're going to move to two-minute statements. You will be in continuation.