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

by leave—I move amendments RU110 and PF105 together:

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

21A After paragraph 536(2)(b)

Insert:

; and (c) not include any information prescribed by the regulations in relation to paid family and domestic violence leave.

(2) Schedule 2, item 9, page 13 (lines 1 to 7), omit subsection 757B(4), substitute:

Extended paid family and domestic violence leave provisions

(4) The extended paid family and domestic violence leave provisions are:

(a) the provisions of Subdivision CA of Division 7 of Part 2-2, and the related provisions identified in subsection (3) of this section, as they apply because of this section; and

(b) section 757BA.

Modifications are set out in Subdivision B of this Division

(4A) The extended paid family and domestic violence leave provisions have effect subject to the modifications provided for in Subdivision B.

(3) Schedule 2, item 9, page 13 (after line 11), after section 757B, insert:

757BA Employer obligations in relation to pay slips

If an employer gives a person a pay slip relating to paid leave to which the person is entitled because of section 757B, the employer must not include on the pay slip any information prescribed by regulations made for the purposes of paragraph 536(2)(c).

(1) Schedule 1, item 22, page 7 (line 31) to page 8 (line 19), omit subclause 53(1), substitute:

(1) On application by an employer, employee or employee organisation covered by a pre-commencement enterprise agreement, if:

(a) the agreement includes terms entitling employees to paid family and domestic violence leave within the ordinary meaning of that expression; and

(b) the FWC considers that the effect of those terms is detrimental when compared with the entitlement under Subdivision CA of Division 7 of Part 2-2 as amended by Schedule 1 to the amending Act (the NES entitlement);

the FWC may make a determination varying the agreement to make the agreement consistent with the NES entitlement.

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

I understand that there is a time imperative in relation to the bill and that we will hit a hard marker at 12:15. I therefore will endeavour to get as many questions on the record as possible, and I would seek to work with the minister in that respect.

Minister, you will be aware that, in relation to the decision of the Fair Work Commission, there are three parts of this bill that go beyond what the provisional decision was. The bill was examined in the committee, and during that committee process there were a number of questions that were asked on behalf of, in particular, small businesses around Australia, and adequate information was not provided. In terms of the questions I would like to put to you, I will give you a heads up to the topic so that the department and your office can provide you with the information. They will be in relation to the ability of perpetrators to access the leave, the reporting obligations of employers, the amendment that the government will be moving in relation to the payslips, which the opposition has indicated it will be supporting. I also have some questions in relation to the inclusion of casuals, the rate of pay and accrual. In relation to perpetrators, I will do them as a block of questions to enable you to respond in a timely fashion.

At the committee hearing in relation to this matter—I do note that Senator Brown has made some further comments in her summing-up speech—the department itself, at that time, could not confirm with certainty whether perpetrators will have access to paid family and domestic leave. Can I get the minister to outline the government's position, the reason being, obviously, that people turn to the Hansard to interpret decisions that are being made? Can the minister outline the government's position clearly? In other words, is it a guarantee that perpetrators of domestic violence will not be able to access paid family and domestic violence leave under this legislation? If someone were to take paid family and domestic violence leave and were then found out to be the perpetrator of the reason for leave, what course of action does the employer then have in relation to this particular employee? Also, are they able to recoup the monies paid to the employee in accessing the leave? Are you able to take us through the safeguards the government has put in place in the legislation to ensure that it is not accessed by perpetrators?

The other question that's being asked by businesses, and small businesses in particular—I note that it was also raised by the Australian Greens—is: does the government agree with the suggestion that perpetrators should be able to access paid family and domestic violence leave to attend counselling on how not to commit domestic violence? That's the block of questions, so could I get your response to them for the Hansard? Thank you.

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

I do have some answers to some of the questions that you've posed and I might just get some further advice on a couple of the other more specific aspects. What I'm advised is that, to access the leave entitlement under the Fair Work Act, an employee may take family and domestic violence leave only if they are experiencing family and domestic violence. The government is aware that some jurisdictions and organisations offer leave for perpetrators in certain circumstances. This is not the purpose of this bill, which is intended to aid those experiencing family and domestic violence to seek help and leave. The entitlement does not provide a benefit to those who perpetrate family and domestic violence, and it is the government's view that providing a universal national entitlement to this benefit would not be in line with community expectations.

I know there were a couple of additional questions. I'll see if I've got any further advice for you on those. What I'm advised in terms of the ability of employers to recoup leave that is, if you like, incorrectly paid to a perpetrator, is that there are existing provisions under the legislation to recoup payments and take other action for fraudulent claims. Those powers would exist in these circumstances as well. Does that cover off each of those questions?

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

I'll accept those answers because I think they do properly now articulate the position that employers can then look to. Could I put another block of questions to you? It is in relation to reporting obligations—again, in particular for small and family businesses, who don't have the huge HR departments; it will be mum-and-dad businesses who are reviewing the Fair Work Act and wondering where to go. This is one that has been consistently raised, even despite the Senate committee looking into the matter itself. Again for the benefit of the Hansard record: when an employee accesses family and domestic violence leave, what reporting obligations does an employer have to inform authorities? What small and family businesses in particular have requested is if you can guarantee that no employer will be liable should their employee access family and domestic violence leave and then the employer fails to report it to authorities. What safeguards are in place in the legislation to ensure that employers cannot be held liable when an employee accesses family and domestic violence leave and they do or do not report it and there was the opposite obligation?

I'll now turn to people who work from home. If an employee works from home, for all or part of their employment, and then accesses paid family and domestic violence leave, what obligations does this put on the employer in terms of providing a safe workplace?

Changing topics slightly here, if an employee is under 18 and accesses family and domestic violence leave, does this fact change the reporting obligations for the employer?

If an employer reports to the police that their employee has access to family and domestic violence leave against the wishes of the employee, will the employer be subject to penalties for going against the wishes of the employee? What guidance has or will the department provide to employers in relation to the reporting obligations?

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

The bill does not place any reporting obligations on employers. Any reporting obligations arising under state or territory laws are not prohibited by the bill. State or territory laws such as those that apply to some workers mandating the reporting of suspected abuse of children would not be affected. However, the current section 106C of the act provides an exemption to the confidentiality obligation where the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person. So there is a degree of protection in there for employers. In addition to information available on state and territory websites, you'd be aware, Senator Cash, that 1800RESPECT and the Australian Institute of Family Studies also provide information on mandatory reporting on their websites, and I'd encourage employers to take that up.

I'm looking at the departmental officials now, but, based on that information, I would assume that the same rules apply in relation to work-from-home employees or employees under the age of 18 as exist more generally. So, everything that I've said already applies to those employees as well. As I've sort of implied, for employees under the age of 18, there may be particular obligations in relation to mandatory reporting of suspected abuse of those children. But the same exemption for the confidentiality obligation and the other things that I've already said apply in that situation, too.

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

I'll turn now to another topic, that is, prescribing the payslips, and it's in relation to one of the amendments that the government has moved. With the payslips, how will this actually work through the businesses payroll services? How do you see it actually working? Did you have any consultation with employers prior to drafting the amendment? More importantly, though, will businesses be penalised, and, in particular, small and family businesses who, again, don't necessarily have that capacity? They don't have an HR department. They're doing it all themselves—probably on Sunday at midnight, wondering if their doors are going to open tomorrow. The point being, if they accidentally include on a payslip information that shows that the employee has accessed or taken paid family and domestic violence leave, what are the penalties the business will face? Will the government be producing guidance materials for small businesses to ensure that they are adequately informed on these issues? Would the businesses have a chance to rectify payslips that do show this information, or would they immediately face penalties? Any businesses, but often small businesses, will actually outsource their payroll, for example, to an external accountant. Who would then be responsible—the small business or the external accountant—in the event that, on the payslip, it states family and domestic violence leave?

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

There are a few questions in there, Senator Cash, but I'll do my best to answer them. If I've understood your questions correctly, they relate to the amendment the government has moved around pay slips. This amendment makes technical changes to the Fair Work Act which provide legislative support to amend the Fair Work Regulations to prevent the listing of family and domestic violence leave on an employee's pay slip. This amendment arises from issues that were raised in the consultation process.

Why this matters is that, for those in a situation of coercive control or where a perpetrator has access to a victim's financial records, the appearance of 'family and domestic violence leave' on a pay slip could put the employee taking leave at significant risk. Currently, the Fair Work Act does not allow items to be prohibited from appearing on a pay slip. It only prescribes what must be included. So this amendment is needed to ensure that a prohibition on showing an employee's family and domestic violence leave balance on a pay slip can be added to the Fair Work Regulations.

You raised a point about consultation. As part of consultation on the bill, the government consulted with payroll providers and the Council of Small Business Organisations Australia, COSBOA, who raised this issue as a concern. Submissions to the Senate inquiry, such as that from the National Women's Safety Alliance, also flagged pay slips as a point of concern. I acknowledge that this has been a particular issue of interest to Senator Lambie. That is what has led to us making this amendment. I hope I have at least mostly answered your questions.

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

I want to explore one other part that, again, has been raised by businesses. In the first instance, will they have a chance to rectify the pay slip, or will they face an immediate penalty? Also in relation to outsourcing, would it be the small business or the outsourced company that is responsible for the mistake? If a worker has taken paid family and domestic violence leave and works at home occasionally, would this then create an issue under work health and safety laws for the employer?

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

While the minister is seeking advice, I will chime in because I fear that otherwise I might miss my opportunity entirely, given that we hit the hard marker at 12.15. Can I just point out that the Greens will be supporting both of the amendments that the government has just moved. One is a technical fix that relates to the National Employment Standards. The other is an important change about pay slips, which the opposition is now asking about. We think that nicely treads the line between respecting the safety and privacy of workers who are experiencing family and domestic violence and maintaining the need to call this 'family and domestic violence leave', which will help to destigmatise the fact that this is rampant in society—and we need to change that. For the record, we won't be supporting the Jacqui Lambie Network amendments, because we don't agree that we should call this something that it is not. This is not emergency leave; it is family and domestic violence leave.

I'm being handed at this very moment a fresh amendment which I have not had the chance to digest. I'm told that the government is talking with the Jacqui Lambie Network about this amendment. I look forward to the opportunity to actually read that amendment and form a view on whether or not it's a useful change in relation to protecting women and ensuring that women don't have to choose between their job and their safety.

While I'm on my feet I might briefly outline the fact that I'll be moving our amendments en bloc. We had hoped to get this bill done in the last parliamentary sittings and did our level best to deliver that, but it looks like now we won't get the chance until perhaps later tonight, when maybe there won't be opportunities for speaking. In very brief form, we are moving some minor amendments which relate to the fact that the leave should be available not just to people who are experiencing violence but to people who have experienced family and domestic violence. We know it can take years to get the court processes to complete—often in an unsatisfactory manner, I might add—and we need to make sure also that it is clear that an employee can access leave to undertake activities that are not just inconvenient for them to do on work time, as the current bill proposes, but are unsafe for them to do other than on work time. That is another of our amendments.

We've also expanded out the list of things in the note that employees specifically can ask for leave for in order to stay safe. We're moving an important amendment that relates to having an additional four days of unpaid leave on top of the 10 days of paid leave, acknowledging that it can take a long time to do the things you need to do, assuming you have the resources to do them, which is why this bill is important and also why funding for frontline services is very important. We'll be moving that amendment as well; it gets us closer to best practice.

On that resourcing issue, my second reading amendment went to the fact that this bill will increase demand on frontline services. We were hoping that, in last night's budget, there would be an increase in funding for frontline services. There was a partial indexation. That is not a funding increase. There is already unmet demand for frontline services and prevention work and healing work. There is already an unmet need, and this bill, which is crucial, will increase that need. We needed to see money in the budget last night for frontline services to keep women safe and to stop the incredible number of deaths that are happening. But, in the interest of time, we didn't move that one to a vote, mistakenly thinking that we might be able to pass this bill in a timely fashion.

My final amendment, which I will move when my turn comes, relates to making sure that there can be no discrimination or unfair dismissal as a result of an employee seeking to access family and domestic violence leave. When the time comes, probably at about 11 o'clock tonight with no chance to speak, I will be commending these amendments, and I would urge all parties in this parliament to deal with this bill promptly so that small businesses have the time to change whatever operations they need to change to undertake their obligations. I note with pleasure that there was an amount allocated last night in the budget to enable support for small businesses to adopt this new practice.

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

Before I address Senator Cash's questions, I'd like to table two supplementary explanatory memoranda relating to the government amendments to be moved to this bill.

In terms of the questions that Senator Cash asked—and Senator Waters, I was trying to keep an ear on what you were saying while getting the answers to these questions. I don't think there were any questions you posed in that contribution, though.

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

No, except, 'What the hell is this amendment?'

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

Senator Cash, what I'm advised is that strictly speaking a failure by a business or payroll provider to comply with this obligation would amount to a breach of the act, but, in practice, should the employer or payroll provider take speedy action to rectify the situation, that would be taken into account by the commission. It certainly is not the intention to go around fining employers or payroll providers who may inadvertently fail to comply. On that—you asked about this earlier as well—it's certainly the department's intention to provide substantial information to small businesses to assist them to comply. We want this to work. We want people to understand the obligations.

You raised workplace health and safety laws. I don't know if this is exactly addressing your query, but the bill does not create any additional workplace health and safety obligations. It doesn't alter the existing interactions between the Fair Work Act and workplace health and safety laws. Employers, of course, have a duty under workplace health and safety laws to ensure the health and safety of workers so far as is reasonably practicable while they are at work, and this includes actively managing the risk of family and domestic violence happening at the workplace.

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

We are going to hit the hard marker shortly, so the next series of questions would be in particular in relation the inclusion of casuals. It is incredibly confusing for business, given this does go further than what the Fair Work Commission themselves have said. It does actually change the way the leave operates within the Fair Work Act itself. There were a number of questions that I had, and I don't know if we can return to them tonight. But in particular the questions that business are asking are: under clause 19 of the bill, if a casual employee gets a call asking what days they are available for the next week and then subsequently is unable to come in but has not been provided with the times, would they be entitled to payment under this bill? Under clause 19, if a casual employee gets a call asking what days they're available for the next week but then is subsequently unable to come in due to family and domestic violence leave but was not actually provided with the times, how would you actually calculate their rate of payment under this bill? If we do return to this bill, it would assist perhaps if some answers could be provided.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Order! It being 12:15, pursuant to order I now call for senators' statements.