Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to 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.

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

I very much appreciate that additional clarification. I may have some further questions. I know Senator Waters will have some questions in relation to the bill generally. I will continue to ask away. This is in relation to the rate of pay. Again, small and family business understand the current leave arrangements in the Fair Work Act, in particular as they apply to casuals with a 25 per cent loading. This decision goes beyond what the Fair Work Commission itself had recommended in three aspects which we've been discussing.

In relation to the rate of pay, these are questions that have been put to me by small and family businesses in particular—hence why I am seeking answers on Hansard, so they can refer to them.

If I can go to what are referred to as, say, contingent entitlements. Contingent entitlements or work related allowances are payments above the base rate of pay. Normally leave is paid at the base rate of pay under the Fair Work Act. The government has determined that in this case it will be paid at the full rate of pay. In terms of the contingent entitlements or work related allowances, payments above the base rate of pay relate to the work that the employee is participating in. For example, they are made to employees who do certain tasks, have a particular skill they use at work, use their own tools at work, work in unpleasant or hazardous conditions, incur an expense for doing their job. Then you have a look at—and I know you'd be familiar with them—common allowances, for example hot work allowances, cool room allowances, confined spaces allowances and travel allowances. The issue has now arisen that because the government has moved towards what the ACTU had put forward, as opposed to what the Fair Work Commission has stated, there is genuine confusion amongst businesses about how they should actually calculate the rate of pay.

I'm just going to take you through a few scenarios to try and seek guidance, on Hansard, for businesses to actually turn to, in the event that they are confronted with certain scenarios very similar to what we just went through.

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

I think I have an answer for you. In the interest of time, would you like me to provide the answer which may actually answer the various examples?

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

I would.

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

I know this is a bill that we all want to get through, that's all. The purpose of the paid family and domestic violence leave entitlement is to provide financial security for those experiencing family and domestic violence. The principle underlying it is that employees should not have to choose between doing things to ensure their own safety or going to work to make ends meet.

The new family and domestic violence leave payment will be paid at the full rate of pay, which is the payment an employee would have received had they not taken a period of leave. This includes any loadings, penalty rates or allowances the employee would have ordinary received had they been working. For example, the casual loading, overtime allowance, higher duties allowance or a living away from home allowance are payable if they would have applied to the shift the employee would have worked had they not taken a period of leave. You gave a number of examples including working in hot or unpleasant conditions. Unless I'm told otherwise I am going to assume that if that was an allowance that a particular employee was paid in their ordinary work time then that would be payable as part of the leave payment, should someone seek to exercise that right.

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

Thank you. That does provide further guidance for business. I do appreciate that. The issue is if it is not determined at the time the shift is offered what the employee will be doing on that particular day, but, for example, they would normally work in a confined space, they would normally work in a cold space or in a hot space, but it's not an everyday occurrence, so there is still an element of, 'We may have to decide on the day.' So the shift has been offered—subject to not actually knowing what they'll do on the day—and the employee has accepted the shift, so tick, tick. However, they then have to take the paid family and domestic violence leave. The very genuine issue raised by employers is: how do I know whether or not, in determining that rate of pay, I should factor in the allowance or not? The reason being that if I get it wrong I'm now subject to a penalty.

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

To supplement what I said previously, for irregular payments or amounts contingent upon certain events that may or may not have happened during the employee's rostered hours, an employer may not be liable to pay an employee those amounts. It's difficult to give an absolutely categorical assurance that applies to every single circumstance, but the principle is that if an allowance is ordinarily payable if an employee is at work then they would be paid at a rate that included those allowances. If an allowance is contingent upon certain events then, depending on the regularity and other factors, an employer may not be liable. One example I can give you is that an employee may not be entitled to be paid a travel allowance in relation to a period of paid family and domestic violence leave—if the calculation of the allowance was based on the distance travelled—where the distance that would have been travelled during the period the employee took the leave cannot be ascertained. Of course, as I mentioned when we were discussing this earlier today, it is certainly the department's intention to provide advice to small businesses about how to interpret these new laws. The usual option for small businesses to seek advice from the Fair Work Ombudsman to understand their legal requirements would be available for this as well.

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

That actually was my next question in relation to the travel costs, Senator Watt, and you have now answered that, thank you. I know you'll be aware of this but, just to put it on the Hansard record, the Fair Work Commission in their decision about the rate of pay for paid family and domestic violence leave, FDV leave, have stated:

However, we consider that it would be overly disruptive to the integrity of the safety net to establish, on an across-the-board basis, a new paid leave entitlement which operates on a radically different basis to the paid leave entitlements for which the NES currently provides.

They also stated, in paragraph 863:

We cannot identify a persuasive rationale for taking a different approach in the case of paid FDV leave only.

Again just to get it on the record: given that that was the Fair Work Commission 's opinion—and I understand the ACTU had put forward another view and the government accepted that, and that's what we're looking at today—can I just again get the government's rationale? When we asked for it at the committee hearing, the department were not able to provide that assistance. And, to be fair to them, they are not the government. What was the government's rationale in actually going further than what the Fair Work Commission had stated, in particular given the concerns that the Fair Work Commission have put on the record—'overly disruptive to the integrity of the safety net'—in terms of this part of the bill? And how did the government determine it would depart from the advice and the decision of the Fair Work Commission?

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

Really, it comes down to one of the underpinning policy objectives of this legislation, which is that employees should be able to take leave to deal with the impact of family and domestic violence without the loss of income that they would have otherwise experienced. That's really what it comes down to. I probably can't elaborate any further.

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

No; I understand what you're saying. It then goes to the next issue, which is, given the statements that you have just made, and the need for income continuity, one of the issues that has been raised now time and time again by business is: will the government now also seek to amend all needs-based entitlements to follow that model? And that obviously then goes to, effectively, upending the entire National Employment Standards and departing from what even the Fair Work Commission have stated would be overly disruptive, when you go down this path.

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

We have absolutely no plans whatsoever to do that.

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

Is that a full stop? Or is that a 'at this point in time'?

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

I have not seen anything that makes me think that there is any possibility that we would do that.

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

We are obviously now also referring to the amendments that the minister has moved, the first amendment on a sheet PF105. In relation to this amendment, just to put the coalition position on the record, the new subclause would provide that on application by an employer, employee or employee organisation covered by a pre-commencement enterprise agreement that includes terms entitling an employees to paid family and domestic violence leave, the Fair Work Commission can consider whether the effect of the terms is detrimental when compared with the entitlement to paid family and domestic violence leave in the National Employment Standards. If the Fair Work Commission considers the effect of those terms is detrimental compared to the National Employment Standards, it may vary the terms of the agreement to make the agreement consistent with the National Employment Standards.

The coalition, as we have advised the government, will support the amendment. It is a technical amendment to ensure that the Fair Work Commission is not in the language of the new subclause. It would be updated to clarify that they may consider the interaction between the agreement and the National Employment Standards, rather than making decisions about the agreement's effect as provided by the original subclause.

In relation to the amendment moved by the minister on sheet RU110, this amendment will require employers to not provide information on an employee's pay slip that they have taken paid family and domestic violence leave. I understand the amendment deals with the concerns of victims who may be financially abused and could be put at risk if their perpetrator is watching their pay slips. Again, we have advised the government that the coalition will support this amendment.

I think there are still some questions, and I do hope that they are worked through during the consultation period with small and family businesses in relation to the actual operation et cetera, how it will be administered for small and family businesses. But we do support this amendment, as it will address the concerns raised by both stakeholders in conversations with the coalition and certainly stakeholders who appeared at the committee hearing in August.

Question agreed to.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (37) on sheet 1608 revised together:

(1) Title, page 1 (lines 2 and 3), omit "paid family and domestic violence leave", substitute "emergency leave".

(2) Clause 1, page 1 (lines 6 and 7), omit "Paid Family and Domestic Violence Leave", substitute "Emergency Leave".

(3) Schedule 1, items 1 to 21, page 3 (line 4) to page 6 (line 4), omit the items, substitute:

1 Section 12 (definition of close relative )

Omit "subsection 106B(3)", substitute "subsection 105(3)".

2 Section 12 (definition of compassionate leave)

Repeal the definition.

3 Section 12

Insert:

emergency leave means emergency leave to which a national system employee is entitled under section 104.

4 Section 12 (definition of family and domestic violence )

Omit "subsection 106B(2)", substitute "subsection 105(2)".

5 Section 12 (definition of permissible occasion )

Omit "sections 102 and 104", substitute "section 102".

6 Section 12 ( unpaid family and domestic violence leave )

Repeal the definition.

7 Section 17 (note)

Omit ", compassionate leave and unpaid family and domestic violence leave", substitute "and emergency leave".

8 Paragr aph 61(2)(e)

Repeal the paragraph, substitute:

(e) personal/carer's leave and emergency leave (Division 7);

9 Paragraph 79(2)(b)

Omit "compassionate leave", substitute "emergency leave".

10 Division 7 of Part 2-2 (heading)

Omit ", compassionate leave and unpaid family and domestic violence leave", substitute "and emergency leave".

11 Section 98

Repeal the section, substitute:

98 Employee taken not to be paid personal/carer's leave at certain times

Public holidays

(1) If the period during which an employee takes paid personal/carer's leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer's leave on that public holiday.

Period of emergency leave

(2) If the period during which an employee takes paid personal/carer's leave includes a period of emergency leave, the employee is taken not to be on paid personal/carer's leave for the period of that emergency leave.

12 Subdivisions C and CA of Division 7 of Part 2-2

Repeal the Subdivisions, substitute:

Subdivision CA — Emergency leave

104 Entitlement to emergency leave

(1) An employee is entitled to 10 days of emergency leave in a 12 month period.

(2) Emergency 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 purpose of subsection (2), if an employee is employed by a particular employer:

(a) as a casual employee; or

(b) for a specific period of time, for a specific 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 emergency leave as:

(a) a single continuous 10 day period; or

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

(c) any separate periods to which the employee and the employer agrees, 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 entitlement in subsection (1) to deal with the impact of any of the circumstances specified in subsection 105(1).

105 Taking emergency leave

(1) The employee may take emergency leave if:

(a) the employee is experiencing family and domestic violence and:

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

(ii) it is impractical for the employee to do that thing outside the employee's work hours; or

(b) a person who is a member of the employee's immediate family or a member of the employee's household contracts or develops a personal illness that poses a serious threat to that person's life and the leave is taken to spend time with that person; or

(c) a person who is a member of the employee's immediate family or a member of the employee's household sustains a personal injury that poses a serious threat to that person's life and the leave is taken to spend time with that person; or

(d) a person who is a member of the employee's immediate family or a member of the employee's household dies; or

(e) a child is stillborn, where the child would have been a member of the employee's immediate family, or a member of the employee's household, if the child had been born alive; or

(f) the employee, or the employee's spouse or de facto partner, has a miscarriage.

Note 1: Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by subparagraph (a)(i) include arranging for the safety of the employee or a close relating (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

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

(2) Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee's household, or a current or former intimate partner of an employee, that:

(a) seeks to coerce or control the employee; and

(b) causes the employee harm or to be fearful.

(3) A close relative of the employee is a person who:

(a) is a member of the employee's immediate family; or

(b) is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Note: Immediate family is defined in section 12.

(4) Emergency leave taken for the purpose specified in paragraph (1)(b) or (c) may be taken at any time while the illness or injury persists.

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

(5) Paragraph (1)(f) does not apply:

(a) if the miscarriage results in a stillborn child; or

(b) to a former spouse, or former de facto partner, of the employee.

Note: For the definition of a stillborn child, see subsection 77A(2).

106 Payment for emergency leave

(1) If, in accordance with this Subdivision, an employee takes a period of emergency leave, the employer must pay the employee, in relation to that period:

(a) for an employee other than a casual employee—at the employee's full rate of pay, worked out as if the employee had not taken the period of leave; or

(b) for a casual employee—at the employee's full rate of pay, worked out as if the employee had worked the hours in the period for which the employee was rostered.

(2) Without limiting paragraph (1)(b), an employee has 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.

(3) Paragraph (1)(b) does not prevent a casual employee from taking a period of paid emergency leave that does not include hours for which the employee is rostered to work. However, the employer is not required to pay the employee in relation to such a period.

106A 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.

106B Operation of emergency 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).

13 Paragraphs 107(3)(c) and (d)

Repeal the paragraphs, substitute:

(c) if it is emergency leave—the leave is taken for a reason specified in subsection 105(1).

14 After subsection 107(3)

Insert:

(3A) To avoid doubt, an employee is not required under paragraph (3)(c) to give an employer evidence identifying which of the reasons specified in subsection 105(1) the leave is taken for.

15 Subsection 107(5)

Omit "unpaid carer's leave or compassionate leave", substitute "unpaid carer's leave".

(4) Schedule 1, item 22, page 6 (lines 8 and 9), omit "Paid Family and Domestic Violence Leave", substitute "Emergency Leave".

(5) Schedule 1, item 22, page 6 (lines 13 and 14), omit "Paid Family and Domestic Violence Leave", substitute "Emergency Leave".

(6) Schedule 1, item 22, page 6 (lines 15 to 17), omit the definition of pre-commencement enterprise agreement in clause 51.

(7) Schedule 1, item 22, page 6 (line 22), omit "paid family and domestic violence leave", substitute "emergency leave".

(8) Schedule 1, item 22, page 7 (line 29) to page 8 (line 30), omit clause 53, substitute:

53 Regulations may provide for transitional matters

The regulations may make provisions of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Schedule 1 to the amending Act.

(9) Schedule 2, item 1, page 9 (lines 8 to 9), omit "paid family and domestic violence leave", substitute "emergency leave".

(10) Schedule 2, item 2, page 9 (line 13), omit "paid family and domestic violence leave", substitute "emergency leave".

(11) Schedule 2, item 3, page 9 (line 23), omit "paid family and domestic violence leave", substitute "emergency leave".

(12) Schedule 2, item 4, page 9 (line 26), omit "106D(1)", substitute "106B(1)".

(13) Schedule 2, item 4, page 10 (line 3), omit "106D", substitute "106B".

(14) Schedule 2, item 7, page 10 (line 16), omit "paid family and domestic violence leave", substitute "emergency leave".

(15) Schedule 2, item 8, page 11 (lines 1 and 2), omit "paid family and domestic violence leave", substitute "emergency leave".

(16) Schedule 2, item 9, page 11 (lines 5 and 6), omit "paid family and domestic violence leave", substitute "emergency leave".

(17) Schedule 2, item 9, page 11 (after line 15), after paragraph 757A(b), insert:

and (c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as amended and in force for Australia from time to time;

(18) Schedule 2, item 9, page 11 (lines 16 and 17), omit "paid family and domestic violence leave", substitute "emergency leave".

(19) Schedule 2, item 9, page 11 (lines 18 and 20), omit the note, substitute:

Note 1: The ILO Convention and the Recommendation could in 2022 be viewed on the ILO website (http://www.ilo.org).

Note 2: The Covenant is in Australian Treaty Series 1976 No. 5 ([1976] ATS 5) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(20) Schedule 2, item 9, page 11 (lines 21 and 22), omit "paid family and domestic violence leave", substitute "emergency leave".

(21) Schedule 2, item 9, page 12 (lines 3 and 4), omit "paid family and domestic violence leave", substitute "emergency leave".

(22) Schedule 2, item 9, page 12 (lines 10 to 16), omit "subsection 106D(3)" (wherever occurring), substitute "subsection 106B(3)".

(23) Schedule 2, item 9, page 12 (line 17), omit "subsection 106D(3)", substitute "subsection 106B(3)".

(24) Schedule 2, item 9, page 13 (line 2), omit "paid family and domestic violence leave", substitute "emergency leave".

(25) Schedule 2, item 9, page 13 (line 4), omit "paid family and domestic violence leave", substitute "emergency leave".

(26) Schedule 2, item 9, page 13 (lines 12 and 13), omit "paid family and domestic violence leave", substitute "emergency leave".

(27) Schedule 2, item 9, page 13 (lines 14 and 15), omit "paid family and domestic violence leave", substitute "emergency leave".

(28) Schedule 2, item 9, page 13 (line 18), omit "paid family and domestic violence leave", substitute "emergency leave".

(29) Schedule 2, item 9, page 13 (line 22), omit "paid family and domestic violence leave", substitute "emergency leave".

(30) Schedule 2, item 9, page 13 (lines 23 to 30), omit section 757E, substitute:

757E State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to:

(a) family and domestic violence; or

(b) other circumstances of a kind mentioned in subsection 105(1);

to the extent that those laws

(c) apply to non-national system employees; and

(d) provide entitlements for those employees that are more beneficial that the entitlements provided under the extended emergency leave provisions.

(31) Schedule 2, item 9, page 14 (lines 1 and 2), omit "paid family and domestic violence leave", substitute "emergency leave".

(32) Schedule 2, item 9, page 14 (lines 6 and 7), omit "paid family and domestic violence leave", substitute "emergency leave".

(33) Schedule 2, item 9, page 14 (line 14), omit "paid family and domestic violence leave", substitute "emergency leave".

(34) Schedule 2, item 9, page 14 (lines 20 and 21), omit "paid family and domestic violence leave", substitute "emergency leave".

(35) Schedule 2, item 9, page 15 (lines 4 and 5), omit "paid family and domestic violence leave", substitute "emergency leave".

(36) Schedule 2, item 9, page 15 (lines 9 and 10), omit "paid family and domestic violence leave", substitute "emergency leave".

(37) Schedule 2, item 11, page 15 (line 18), omit "paid family and domestic violence leave", substitute "emergency leave".

Tammy Tyrrell (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

If you need help, you should be able to get help. That is a very basic principle, and it's one this bill seeks to sustain. I support this ambition. Many people have campaigned for a long time to get this bill to where it is today, and that is both commendable and impressive. You should be congratulated for the hard work to make today possible. But there are problems with this bill and there are problems that need fixing. They are fixable, but they are not being fixed.

The biggest problem with this bill is the name of the entitlement it creates. It's called 'paid family and domestic violence leave'. You might think, if that's what you're going through, call it as such. But there are plenty of people who are going through what you or I would recognise as family and domestic violence, and not all of them know it because, if you love the person who's abusing you, you make excuses for it. You don't think of them as an abuser, because how could they be? How could someone who loves you do that to you?

It's why you don't self-identify as having experienced domestic violence—because your partner loves you and nobody who loves you would do that to you.

So you don't think of yourself as suffering from domestic violence. You had a blue. He lost his temper. You pushed him too hard. You make excuses. You minimise it. And all of that is understandable. I don't want to pass judgement on you for doing that. This bill would say: if that's where you're at, you don't get help, because the name of the leave is 'paid family and domestic violence leave', and you haven't experienced domestic violence, so it's not for you. In fact, in order to get it—if you need it—you have to come forward and say not only that what you experienced is domestic violence but that, by extension, the person who did it to you is a perpetrator of domestic violence. That's why the name matters. The only type of person who's eligible for paid family and domestic violence leave is the type of person who's experiencing domestic violence. If you don't think that's you, you rule yourself out.

This could be fixed. I've got amendments that would fix it. Calling this 'emergency leave' would not require you to self-identify as having experienced domestic violence. You'd only need it to be an emergency—an unforeseen emergency at home—that would prevent you from coming to work that day. Nobody experiencing domestic violence would miss out. Nobody experiencing domestic violence would be worse off. This would be a change that would serve only to increase the chance that people who need help get help. That's the principle this bill is supported to advance. This makes it more universal, and that's a good thing. It should be supported, so I foreshadow that my amendment would do just that.

But there are benefits beyond simply whether a person self-identifies as being a victim of domestic violence. If you're sick at work and you want to take sick leave, you've got to tell someone at work you're sick. If you're experiencing domestic violence at home and you want to take domestic violence leave, you've got to tell someone at work you're experiencing domestic violence. Some people aren't going to see that as a barrier. Often they're in big cities, working in big companies with well-defined rules around confidentiality. They wouldn't know their HR manager from a bar of soap. Some people in small towns and small businesses aren't in the same boat. Not everybody wants their whole workplace to know what has happened to them. If your boss knows your partner, then telling your boss about what's going on at home is a particularly big deal because you're not just saying what you're going through but you are, de facto, naming who's putting you through it. That is a big step for someone to decide to take.

You have no right to say to a person that they should have to meet a standard we impose on them before they're entitled to safety and protection—absolutely none. You should be entitled to privacy. You should be entitled to safety. No lawmaker should make you choose between them. That's us. We shouldn't be doing what we're doing. When you ask for domestic violence leave, even in asking the question, you're explaining why you need it, and it's absolutely none of your employer's business why you need safety in that moment. It's an emergency; get out of the way. When you ask for emergency leave, on the other hand, you're saying you're experiencing an emergency, one that prevents you from attending your work for a period of time. Your boss might ask for evidence, but all you need is evidence you're experiencing an emergency. That would be an improvement, but it wouldn't take long for businesses to realise that anybody who's requesting emergency leave is requesting what used to be called domestic violence leave. It's a rose by any other name.

So the second bit of what I'm proposing is to combine domestic violence leave with compassionate leave. That's the leave you take when there has been a death in the family. Combining the two would mean you'd be eligible so long as there's a family emergency. The grounds for eligibility would be the same: if you're eligible for what's currently called 'compassionate leave', you're eligible for emergency leave. If you're eligible for what's proposed to be called 'paid domestic violence leave', you're eligible for emergency leave. There's no change there. This is a change that makes a good thing available to more people. It does not cost a dollar more to implement. It does not restrict access to a single person. It expands access and makes it easier to access. It is a good thing.

Yet I understand that this amendment will not be supported. For the life of me, I do not understand why. Don't get me wrong; I've heard the arguments. They make no sense. I've heard that this is complex. It's not exactly complex. Changing the name of an entitlement is about the easiest change you can make when you're dealing with workplace laws. You just change what you call something. We changed Newstart to JobSeeker, and we all just moved on. We change the names of public service departments, and nobody blinks. Those changes don't do anything. This change does something. Isn't that worth doing? If it's worth the effort to rebadge a building, isn't it worth the effort to save more lives?

Maybe the complexity is about the implementation, rather than the name itself. Maybe it's about how it operates. But this simply combines two existing entitlements; if anything, it makes them simpler to administer: employers have fewer entitlements to take care of. This doesn't change eligibility for those two entitlements, it just makes them simpler. That's the opposite of complexity.

I have heard from the Greens how important it is to bring domestic violence out of the shadows and into the spotlight so that we can reduce the stigma attached to it. I think we should too; I think we should reduce the stigma. I think we should make it as ordinary to claim as any other entitlement. But whose responsibility is it to do that? That's where I disagree with the Greens, because I do not believe that the responsibility for dealing with the stigma around domestic and family violence should fall on the people experiencing the violence in real time while they're trying to keep themselves alive. They should not be made to serve as examples for others, they should be protected. That is the overwhelming obligation we have to them and that is what we should be focused on.

We should make it the job of survivors to survive, not to be ambassadors. A problem that's baked into the design of this bill is making this a workplace entitlement made available through the employer and not through the government. If this were delivered through the government it would help more people. Confidentiality would be guaranteed, privacy would be protected and it would extend not just to people who are employed but go to people who aren't in work as well. It would not push costs for administering this onto businesses; by making this the responsibility of businesses you're making support for domestic violence leave conditional on market forces.

Think about this: in a recession, people lose jobs, businesses go bankrupt and families struggle financially. In a recession, domestic violence increases. That was the finding of the National Library of Medicine's 10-year review of the evidence coming out of the United States. It found that unemployment and economic hardship at the household level are positively related to abusive behaviour. So when people lose their jobs, when they're struggling to make ends meet and when domestic violence rates climb, that's when we cut them off from domestic violence leave—that's the situation we're about to create. If this were run by the government you would be protected, even when you lose your job—in good times and in bad you'd be protected.

I understand that I have support for one amendment, which addresses an issue where survivors could be outed by their employer in situations where they work with their abuser. The amendment, which I'll foreshadow now, makes it clear that employers can't use the information provided by an employee in the course of seeking family and domestic violence leave to take action against another employee—not without consent. Your privacy should be yours, and it's not up to others to give it away on your behalf. It's a fix that goes a little bit of the way to protecting privacy, but we could have gone much further. Ultimately, I'm disappointed that this bill will proceed in the way it's currently written. That's not because I think it's a bad bill, it's just a missed opportunity to turn it into a great bill. Everything that's good about it makes it all the more painful to see it get through in a form that limits how valuable it can be. Paid family and domestic violence leave will save lives, but doing it in a way that asks people to choose between their privacy and their safety means we're going to save fewer lives. More people will suffer—people we could have helped. To you, I'm sorry, but we'll keep fighting.

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

I will just make a brief contribution to explain the Greens' position on this amendment. Throughout the inquiry into this bill we heard from experts and advocates for victim-survivors about the importance of workplace cultures where employees felt safe to disclose abuse. Dedicated family and domestic violence leave is an important component of building that workplace culture and the associated support. In our view, calling it 'emergency leave' just reinforces the idea that family and domestic violence is something that should be hidden.

We've continued to push for measures to remove barriers to victim-survivors accessing leave and to protect the confidentiality of any information provided. I'm pleased that earlier in the committee stage of this bill, we passed an amendment which ensures that the payslip need not record the fact that it is family and domestic violence leave that is the source of the payment. We strongly support that amendment because, of course, any such mention of that could be a red flag to a perpetrator, who may well be having a look at their partner's or former partner's payslip. So in our minds that notion of privacy and protection has been upheld with that amendment, which we supported. But we still need that cultural change. If we don't start calling what we are facing what it is, a sheer epidemic of violence against women in this country, we won't change anything. That's why we strongly support continuing to call this leave family and domestic violence leave.

It's important to show employees that employers will recognise the significance of family and domestic violence and that they understand its complex impact, and that support is available. Without societywide efforts to break down the stigma of disclosing abuse, too many people will remain in dangerous situations. So, whilst we have some sympathy for the sentiments, for the reasons I've just outlined we won't be supporting this particular amendment.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I just want to go into this a little bit further, if I can, and make sure this is quite clear. The reason the military—and I take it from this that this is where there's the emergency leave, so I'm going to explain all this. Emergency leave is there so you don't need to explain your circumstances. Emergency leave leaves it open for other things. It's not just about domestic violence. There are other things going on in people's lives—whether they're losing someone, whether there is a partner or someone in their family who is suffering serious illness that they do not want to speak to their employer about before they take this leave.

Ours was simply to make it quite clear that, when you're in a rural and regional area—and we are so cliquey and so related to each other that I can assure you that, if I did have a partner, you could guarantee that, if I was working in a firm in that little rural and regional area, my partner would know that person, my boss, if I was working there. I am not very comfortable in telling my boss, who is probably good friends with my partner, what is going on in my home life. I'm just not comfortable with that, and I'm not sure anybody out there would be. I shouldn't have to explain to someone.

I know you want awareness, but at what cost? You don't know everybody's situation, and I don't know why they have to explain their whole life and why they're running around under abuse. Explaining that to my boss is the last thing I would want to be doing. Give them a little more room here. It's great to say we want awareness out there and all that, but at what cost? I'm just being very, very careful, and I would like to make it very clear to employers that I shouldn't have to sit down and explain my story to them, if I am in a domestic violence situation where I have already been reduced to nothing, because they are going to ask. The least we can do is offer them cover. That's all this amendment was going to do.

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

I'm conscious that we want to move through this quickly, so I'll keep my question as brief as I can. Minister, are you able to explain to us something that some stakeholders, and, obviously, victims survivors in particular, have raised? No doubt, many of us here have received emails on this issue of privacy and confidentiality. This goes into this particular amendment. I'll give you a cameo. That might help. If an employee claims domestic violence leave, it's recorded in the HR system. It's good that that amendment means that it won't necessarily need to appear on the payslip. But if it's recorded in the system and that employee moves on from that employment, would the privacy of the individual still be protected if that person moves on, applies for another job, and that new prospective employee goes back to that employer and asks the question: 'Has this person ever claimed domestic violence leave?' Would that be a breach of privacy? Would it be a breach of that person's situation if that was provided to that new employer—that information that that person had, at some point, claimed domestic violence leave? It would be good to have that recorded for Hansard.

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

The advice I've received is that, in the situation you're talking about, it would be possible, of course, for a future employer to ask a previous employer whether someone had applied for or used domestic violence leave, just as it would be possible for a future employer to ask a previous employer about annual leave or sick leave, but it would be absolutely illegal for a previous employer to provide that information to a future employer. It's an existing provision under the law that future employers are not entitled to receive information from previous employers about any kinds of leave claims that have been made, and that would certainly apply here. That's correct. Yes.

While I am on my feet, I will put the government's position on this amendment on the record. Just in case those following aren't entirely clear, this amendment, which has been moved by—I am not sure—Senator Lambie or Senator Tyrrell, seeks to combine family and domestic violence leave with compassionate leave and rename the entitlement as 'emergency leave'. I accept that the mover of this amendment has the very best of intentions in seeking to do so and there have been productive conversations with the shadow minister's office about this but, be that as it may, the government does not agree to this amendment.

Compassionate leave, the existing category, is sought to be renamed as a special category of leave providing up to two days paid leave per occasion for full-time and part-time employees. Compassionate leave allows employees to spend time with a severely ill family member or allows them to deal with a family member's death. If this amendment were to pass it would significantly change the current compassionate leave settings and that could very easily result in a number of undesirable consequences. For example, women experiencing family and domestic violence who also need to take compassionate leave, either to spend time with severely ill relatives or due to a family member's death, would have to choose between escaping violence and grieving or caring for a severely ill family member, as compassionate leave would be no longer reserved for grieving purposes. Combining these forms of leave into a single leave balance may, in some cases, provide less paid leave than what is actually proposed in this bill.

The proposed amendment makes significant policy changes to compassionate leave. It would increase the potential amount of compassionate leave that can be taken from two days per occasion to up to 10 days per year, extend paid compassionate leave to casuals and make compassionate leave payable at the full rate of pay instead of the base rate of pay. None of these changes have undergone proper and adequate consultation and, for that reason, the government does not consider it appropriate to support the amendment.

What I will say, though, is that we have tried to pick up the intent of this amendment through the amendments that we have already passed relating to the changes to records on payslips. The government fully understands the importance of protecting personal privacy and acknowledges the concerns of the mover of the amendment regarding the importance of maintaining confidentiality for employees. The government have listened to a range of stakeholder concerns around payslips and that is why we made the amendments earlier that try to deal with the same problem via a different way, but we won't be supporting this amendment.

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

If I could just make a few comments on behalf of the opposition on the amendment on sheet 1608moved by Senator Tyrrell on behalf of the Jacqui Lambie Network. The amendment, unfortunately, does not just change the name of the leave. What it actually would do is wrap in a new form of leave called 'emergency leave'; hence, the change of name to 'emergency leave'. That would expand what this bill is actually looking at, which is the paid family and domestic violence leave. It would, in fact, extend the leave to a range of other circumstances, including caring for an immediate family member with severe illness that is a threat to their life and the employee is caring for them, of caring for an immediate family member with a severe personal injury that is a their life and the employee is caring for them, or a child is stillborn where the child would have been the employee's immediate family or a member of employee's household if the child had been born alive, or the employee or employee's spouse or de facto partner has a miscarriage.

The coalition will not be supporting the amendment for reasons very similar to those provided by the government. We certainly appreciate the intent of the amendment. I think you have stood up and articulated that well. As we all know, sometimes, though, when you are seeking to move an amendment to legislation, while the amendment itself does look very simple on the face of it but, given we are dealing with the Fair Work Act, a very technical piece of legislation, it already has in place a framework for leave. We are looking at amending that framework in relation to leave to add in another entitlement to a different form of paid leave. In particular, the Fair Work Commission itself, in its most recent review, the four-yearly review of the award system, had undertaken an extensive consultation and inquiry into the question of whether or not the unpaid provision for family and domestic violence leave that is currently in the Fair Work Act should be extended to 10 days of paid leave. They said that it should be, they made their decision and the government obviously determined that it would then enshrine that in the National Employment Standards, going further than what the Fair Work Commission had said.

But that is what this bill is dealing with. Your amendment actually takes it beyond that. To be fair to your amendment, if the government were to look at going down this path I think it is something that would need to be looked at in detail, in particular in relation to whether there are any unintended consequences and, if so, what they are and how the Senate deals with them. In particular, because of the nature of what is being looked at, it should be subject to consultation with the relevant stakeholders, in particular how this provision would actually operate within the Fair Work Act and particularly its potential impact on small and family business. So, I absolutely understand the intent, but it's the unintended consequences, and it goes further than the bill that we're actually debating here today.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I do have another question. I just want to clear this up. How much does someone who's been under domestic violence, who's in that situation that I explained, have to tell their boss in order to get that domestic violence leave? Do they have to mention the words 'domestic violence' to get that leave? What do they have to tell their boss? How much information do they have to tell them or give them to get that far?

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

The advice I've received is that if a person wanted to access that leave entitlement they would need to—sorry to use legal terminology—provide the level of evidence that a reasonable person would expect, if they're asked to provide that evidence. That's the technical explanation. But, in a sense, that's similar to a claim for sick leave or any other form of leave where an employee needs to at least disclose a reason for their request for leave. There's no requirement under the legislation to produce photographic or other evidence. And I would certainly hope that employers treat these requests with respect and that if an employee were to make a request and explain that they are experiencing family or domestic violence then an employer would agree to that request. But of course people would need to make that request, and it's implicit in that that they are saying that they have experienced domestic violence.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

If an employer breaches the confidentiality of an employee with respect to domestic violence leave by going to police because of a sincerely held view that it is necessary to protect that employee but does so against the wishes of the employee, how will the employee recover their lost confidentiality? Is there anything in place for that? Or is there reprimanding from the Fair Work Commission? Are we in a grey area here?

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

In this and similar situations, if an employer were to breach an employee's confidentiality in ways set out under the law then they would be subject to a civil penalty.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

That also goes for police when you're reporting because you are sincerely concerned for the person's welfare. I would have thought that if you were sincerely concerned about sitting there and not saying anything and they were getting bashed—I would be feeling quite responsible by sitting on my butt and not doing anything more than offering, 'I can help you.' Where are the rights of the employer who can see that their employee is getting hurt? What is their duty of care here?

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

Senator Lambie, earlier in the debate—I don't think you were in the chamber at the time—we were talking about how this legislation interacts with mandatory reporting obligations. The bill does not place any reporting obligations on employers to report concerns around violence, but there are a range of reporting obligations that exist under state and territory laws and they are not prohibited by the bill.

For instance, state and territory laws, as you'd be aware, often require workers to mandatorily report suspected abuse of children, and those laws would not be affected. There's an exemption to the confidentiality obligation that normally would apply to an employer or someone else in that situation if a disclosure is necessary to protect the life, health or safety of an employee or another person. If there are confidentiality obligations in place for an employer to not disclose personal information of an employee, if we're talking about a situation where the life, health or safety of an employee is in danger, those confidentiality obligations would effectively be lifted. I think a situation involving domestic and family violence would surely fall under that category.

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

I would like to applaud the Jacqui Lambie Network senators, Senator Lambie and Senator Tyrrell, on the way that they consult with their community and bring the community's concerns and ideas into the Senate. We are certainly richer for it, and it's really important to talk these through. I hold similar concerns. On consulting with my community here in the ACT, speaking to experts and frontline workers, the overwhelming consensus is that it is important to call it family and domestic violence leave.

Senator Lambie raises an important point that I'm keen to get clarification on from the government. Senator Watt, you talked about reasonable proof to be able to access this leave. Knowing how stretched our frontline domestic violence services are, I'm assuming that in most instances women will go to frontline services and speak to them, to get some sort of letter of reference or support or share some of the casework. Given how stressed they are, does this legislation come with a commitment to better funding of frontline services—not just better funding but longer-term funding? A lot of local organisations are surviving on 12-month or, at most, two-year funding cycles, which makes it very hard to keep a workforce in the current climate.

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

I won't repeat the point about evidentiary requirement, because the issue you're raising is more about support for domestic violence services. Absolutely, my own dealings with domestic violence services in Queensland convince me that they are very short of resources and very stretched to do extremely stressful work.

You're probably familiar with the fact that the government has just released, in partnership with states and territories, a new national action plan relating to domestic and family violence. I've forgotten the exact name of the action plan. That also committed governments, federal and state, to increase resourcing for those services. That is something we take very seriously and we're providing those resources through that plan.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I have one more question. I'm a little bit confused about if a person's working in different workplaces. How many days leave will a person be entitled to if they're casually employed by more than one employer? I can't quite get that clear.

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

The advice I've got is that it would be 10 days per job and, therefore, 10 days per employer.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

So, if you're working for three small businesses, that could be up to 30 days? I'm a little bit confused.

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

I guess that is theoretically right, but, in the situation you're talking about, if a casual employee is working for three different employers, I'm going to take a punt that they might be working one day a week at one employer and two days a week at another, or part days. The person would only qualify for leave for the amount of time that they actually work. So, if they're working three half-days at three different employers, they'd qualify for 10 days at part-time pay levels. I don't think we're likely to see situations where people get to take three lots of 10 days at a full-time pay level. I know there are lots of people in this chamber who work far more than a full-time day's work, but we're not talking about people who work three full-time jobs who would qualify for three full-time levels of this form of leave.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Do permanent part-time employees get 10 days per employer as well?

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

Yes, they would, but obviously at the part-time rate. Effectively, the idea is to provide leave for the amount of time that you actually work part-time hours. So, if I was working 20 hours a week and I accessed this form of leave, then I would be entitled to 10 days of leave at the rate that I'm being paid, being the part-time rate for 20 hours a week. You don't qualify for 40 hours a week or 38 hours a week of leave if you are only working 20 hours a week. Your entitlement is to be paid the amount that you're paid when you're actually at work.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

The question is that amendments (1) to (37) on sheet 1068 moved by Senator Lambie be agreed to.

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

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

The government does not agree with the three sheets of amendments the Greens are proposing in a number of cases because our very strong view is that the bill as it currently stands achieves exactly what the amendments are seeking to achieve. Just stepping through them quickly, for the amendment on sheet 1641 which seeks to broaden the wording to apply to an employee who has experienced family and domestic violence and also seeks to amend the wording to apply to situations where it's impractical or unsafe for an employee to do certain things, with the current wording of the bill, which talks about applying to an employee who is experiencing family and domestic violence, that is a flexible concept and picks up a broad time period in which a person experiences the consequences of the family and domestic violence. Other forms of leaves, such as personal and carers leave, may be available to eligible employees to deal with longer-term physical and psychological issues. We don't consider that it's necessary to add the word 'unsafe' to the particular clause in the bill. The existing clause refers to situations where it is impractical to do something, and I would find it very hard to believe that any court or tribunal would not consider something that is unsafe to also be impractical, so we think that that covers the field effectively.

What Senator Waters described as the 'technical amendment' relates to a note to a clause. The note does not have operative effect, although it gives guidance to employers and courts as to the intended scope of a section. As Senator Waters would know, the Acts Interpretation Act also makes clear that examples in notes are not exhaustive, and the note itself clearly states that the examples are not exhaustive, so we don't believe that that part of the amendment is necessary.

For the amendments on sheet 1652, we also do not agree with this one. This seeks to provide an entitlement for a further four days family and domestic violence leave annually where employees have exhausted their 10 days of annual paid leave. One of the underpinning policy objectives here is that employees can take leave to deal with the impact of family and domestic violence without the loss of income that they would have otherwise experienced. Of course, the National Employment Standards set out minimum requirements. Employers are already free to provide additional leave at their discretion, either on an ad hoc basis through workplace policies or as a result of bargaining. The bill also amends subsection 106A(5) to clarify that employers and employees can agree that the employee may take more paid or unpaid leave in addition to their minimum entitlement.

The amendments on sheet 1653 seek to add a new section to the Fair Work Act to provide that an employer must not take adverse action against any person who is an employee or prospective employee because the person has experienced or is experiencing family and domestic violence. Again, we don't agree with this amendment because the act already does this. Exercising a workplace right, including taking or requesting to take paid family and domestic violence leave, is already protected by the general protections in the Fair Work Act. An employee requesting or taking family and domestic violence leave is protected from adverse action, including an employer dismissing an employee, injuring them in their employment, altering their position to their detriment or discriminating between them and other employees, and an employer refusing to employ a prospective employee or discriminating against them in the terms and conditions the employer offers. The existing Fair Work Act already does what the Greens are seeking to achieve via their amendments, so we don't support these amendments being made.

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

Thanks, Minister, for outlining that you think many of these amendments are already the intent of the bill. As you and I both know, the fact that you've said that also means that, when people are interpreting this bill, they can rely on that, so thank you. But just one question of clarification: in relation to amendments on sheet 1641, when we're talking about people who are experiencing versus those who have experienced, my ear picked up two things that sounded contradictory, so I'm just seeking your clarification. You said it was a flexible concept, but you then also said that people could use other forms of leave.

Could I just ask you to clarify whether it is your view that the current wording in the bill, which says that the leave is available to those who are experiencing FDV, is a broad enough definition to encompass those who have experienced it, or are you saying that, if it is a past abuse, you can use other forms of leave? It is a very important clarification.

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

I will get a bit more advice on that. Perhaps we could hear from Senator Lambie or one of the other senators while I get that advice.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I have a request. I was wondering if we could split the question and vote on sheets 1652 and 1641 together and take sheet 1653 separately, please.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

Certainly.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Thank you.

The TEMPORARY CHAIR: I am in the hands of the chamber. I might go back to the minister.

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

WATT (—) (): We certainly have no objection to Senator Lambie's request. The point I am making, Senator Waters, is that the legislation as currently drafted provides the entitlement to an employee who is experiencing family and domestic violence. I'm advised that the intent here is not to say that someone needs to be having violence inflicted upon them at that very moment in time. For instance, if it is violence that has been going on for some time—it might not be happening at the exact moment that the request is being made—and they are experiencing domestic violence because it has been happening in recent times, then they would be able to make a claim for that. I can't get into how long ago.

As you know, every piece of legislation is left to courts and tribunals to interpret, using a reasonable person test. We're not saying that someone has to have experienced domestic violence in the last five days, five weeks or five months. We will leave it to courts to interpret that, as they do with every other piece of legislation, but I would think a reasonable person would interpret that legislation to say that if someone is experiencing family and domestic violence, maybe not necessarily at that exact moment in time but in recent times, and it is having an effect upon that person in the form of trauma or something else then they can make a claim.

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

For the sake of absolute clarity, I will put that in a simpler way and you can tell me whether or not I am correct. So you are saying that it also applies to people who have experienced domestic violence? That is exactly why we wanted to move the amendment—to put that beyond doubt—but I just want to confirm that.

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

I can't really add to what I have already said.

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

People shouldn't have to go to court to understand the parameters of what are otherwise really good laws. It sounds to me like you want to support it but maybe you don't want to because the Greens name is on the top of the piece of paper, which has happened before. I am sorry, but I am getting a bit cross here. Can you please just let us know now whether or not your definition of those experiencing violence includes those who have experienced family and domestic violence?

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

It is disappointing that, even in legislation dealing with a new form of leave for those experiencing family and domestic violence, the Greens will try to make a partisan point. In suggesting that we might be taking a position because it has a political party's name on it is a ridiculous partisan comment in debate on a really important piece of legislation, and I am disappointed that that comment has been made. This debate has been conducted in a very civil manner, without partisanship, and it is disappointing to hear a suggestion that we are taking a position because of the name of a party that is on an amendment.

I am giving you the best advice I possibly can. Senator Waters, you are a lawyer, as I am, and you know that every piece of legislation that is passed by this parliament leaves matters open to interpretation by courts and tribunals. What I am saying to you, as I've said three times now, repeatedly, is that the words 'is experiencing', that someone is experiencing family and domestic violence, does not require that violence to be occurring at the moment in time that someone makes that request.

We all know that people experience domestic violence beyond the time that violence is actually being physically inflicted. There's the trauma that it causes. And so if someone has had violence inflicted upon them, for example, in the days leading up to them making a request and they are traumatised by that and fearful of their position, then I would suggest that a reasonable court would interpret these laws to say that that person could take that leave. I'd appreciate it if we could keep the partisan comments out of a very important bill that I would like to think we can all support, just for once.

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

I thank the minister for the clarification. I have reasons for making the statements that I made; I have no disgruntlement with the minister in the chamber, but we have sought for a very long time to get support for these amendments and have been stonewalled. It's not Minister Watt's fault, I just want the record to note that. I don't cast these aspersions lightly—there's a reason for why I've said them. But I thank the minister representing for his clarification on the scope of what those experiencing family and domestic violence means in this context.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

At the request of Senator Lambie we will deal with sheets 1652 and 1641. The first question before the committee will be that amendments (1) to (41) on sheet 1652, and amendments (1) and (2) on sheet 1641 be agreed to.

Question negatived.

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

by leave—Again, in the interests of saving time, can I please ask that, rather than a division, and under the standing orders, the Greens' support for our very sensible amendments be recorded with our names in the Journals.

The TEMPORARY CHAIR: We'll move on to amendments (1) and (2) on sheet 1653, that they be agreed to.

Question negatived.

by leave—Likewise, under the standing orders, can we record the names of the Australian Greens in support for our own amendment? I believe that Senator Lambie might wish to do the same.

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

by leave—I move opposition amendments on sheet 1645, revised, (1) and (2):

(1) Page 2 (after line 12), after clause 3, insert:

4 Review of this Act

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.

(2) Without limiting subsection (1), the review must consider the impact of the amendments made by this Act on:

(a) small businesses; and

(b) sole traders.

(3) The persons who conduct the review must consider both quantitative and qualitative research in conducting the review.

(4) The review must start as soon as practicable after the end of the period of 12 months after the commencement of Schedule 1.

(5) The persons who conduct the review must give the Minister a written report of the review within 3 months of the commencement of the review.

(6) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

This amendment is intended to ensure an independent review is conducted into the operation of paid family and domestic violence leave, especially in relation to the impact the bill will have on small business and sole traders. The bill as currently before us does not have a review mechanism in place, and it is important with a change like this to the operation of the National Employment Standards that we review those changes to ensure that they are appropriate in the way that they have been developed.

The committee that inquired into this bill—and I do thank Senator Matt O'Sullivan for all the work that he did—recommended that the Australian government commission an independent review of the provisions of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill to be undertaken 18 months after the commencement of this schedule. I do appreciate the cooperation that the government has provided to us. The amendment that they have requested, and which the opposition has agreed to, is in relation to section 2C, adding the words 'people experiencing family and domestic violence', and of course in relation to the amendment that has been moved by the opposition at part 4:

The review must start as soon as practicable after the end of the period of 12 months after the commencement of Schedule 1.

I do thank the government for its support.

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

Now that this amendment has been amended by the opposition, we will be supporting the revised amendment. The government was already intending to conduct a review of this legislation. With this amendment that's now been made to the original amendment, our concerns that the statutory review would not take into account the views and voices of survivors are resolved. That's why we will be supporting the revised amendment.

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

enator WATERS (—) (): It is a very interesting change of position, because we heard the minister wrapping up on the second reader saying that the time frame was wrong and the scope was wrong. Now the scope's been changed to add in women, which is a very good, albeit belated, recognition from the opposition that survivors' experience should in fact be considered in reviewing the operation of these news laws. So, congratulations for remembering women in your proposed review.

But the scope of the time for the review still has not been changed. The government earlier were objecting on the basis that 12 months was too short. Given the delayed implementation of these new laws for small business, they will have been in operation for only six months. The government's view earlier today was that that would not be enough time to adequately consider the impacts on small business. They've apparently changed their mind. Can I just add that it's also highly unusual to be reviewing a bill in this fashion in any case, and the only reason we would support this review would be to expand the scope of the bill. With that said, I will sit down.

The TEMPORARY CHAIR: The question before the chair is that amendments (1) and (2) on sheet 1645 revised be agreed to.

Question agreed to.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I move amendment (1) on sheet 1691:

(1) Schedule 1, page 5 (after line 32), after item 19, insert:

19A Subsection 106C(2)

Repeal the subsection (including the note), substitute:

(2) An employer must not, other than with the consent of the employee, use such information for a purpose other than satisfying itself in relation to the employee's entitlement to leave under this Subdivision. In particular, an employer must not use such information to take adverse action against an employee.

(3) Subsection (2) has effect subject to subsection (4).

(4) Nothing in this Subdivision prevents an employer from dealing with information provided by an employee if doing so 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.

The TEMPORARY CHAIR: The question before the chair is that amendment (1) on sheet 1691 be agreed to.

Question agreed to.

The TEMPORARY CHAIR: The question now is that the bill as amended be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.