Tuesday, 4 December 2018
Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018; Consideration in Detail
by leave—I move amendments (1) to (11) as circulated in my name together:
The amendments were unavailable at the time of publishing.
These amendments do a number of different, important things to improve this bill, but I move them together, as I anticipate that most of them won't have the support of the House. As I said in my speech during the second reading debate, there are a number of ways in which this bill could be improved, most notably by changing the leave from unpaid to paid. We've advocated for that for some time. The amendments that I move here do a number of things, though, that aren't directly related to that.
Amendments (1) to (3) will change five days of unpaid leave to 10 days of unpaid leave. We submit that 10 days paid leave would be the much better approach, but, failing that, 10 days unpaid leave would make a significant difference to a number of women. It's predominantly women who are needing to take this leave. It's generally recognised that 10 days leave is an acceptable standard and, when compared to the other types of leave that are offered to people and that people are entitled to, 10 days is certainly something that would make a difference. In the context where it can take a period of time to deal with the difficulties of an abusive relationship and to leave it, certainly the message that we've got very loudly and clearly from the sector is that 10 days is the appropriate period of time.
Amendments (4), (7) and (8) expand the definition of the relationship that an employee can have to someone in order to be able to claim this leave so that it includes a close relative of the employee. That is defined to include a member of their immediate family or someone to whom they are related according to Aboriginal or Torres Strait Islander kinship rules or relationships that are accepted within their community to be related to them. This is an important principle as well. With other forms of leave, over time within the industrial system there's been an expansion of, say, sick leave provisions, or what used to be called sick leave provisions, so that, when someone else in your immediate family is sick, you can take that leave, and some of that's been expanded into what is sometimes called carers leave. That's been its genesis and that's how it's developed over time.
It makes sense here that, if someone is able to take leave because they have experienced family or domestic violence themselves, they should also be able to take leave if there's someone in their immediate family who's experiencing it and they're taking leave to support them. That's going to become crucial when, for example, you're perhaps dealing with things like attending court or attending services where the support of someone would be crucial. As we know, we're dealing with people who are at a very difficult and vulnerable stage, and having that support to exit an abusive relationship may make all the difference. We're not talking about granting unlimited periods of leave. There would still need to be some connection, but making it available to someone who's not just you but who's in your immediate circle, as defined by these amendments, would also make sense.
Amendments (5) and (6) are also very important. If the bill passes in its unamended form, there will be a requirement that, for the employee to access unpaid leave, it would be impractical for them to do what they need to do outside of work hours. That shouldn't be the test. The test shouldn't be one of impracticality. The test should be: what is best going to allow someone to exit an abusive situation? It's a high hurdle to jump and it begs the question about how that's going to be tested and whether people are going to be put to the test of demonstrating that, in some sense, there is that impracticality in their situation. That ought not to be something that someone who's in this situation has to demonstrate. They will be facing enough burdens as it is. Given that the purpose of this bill is to assist people, especially women, to exit abusive situations, then there should not be the additional requirement of impracticality; it should all be directed towards that.
Amendments (9) to (11) extend the confidentiality requirements to third parties so that, for example, if the employee who's taking leave discloses the information to someone in payroll, that person can't disclose the information to someone else. It adds civil remedy provisions should there be that question of breach of confidentiality, and we think that's important in this context as well, given that, to access this leave, there may be a requirement to tell various people about something that's an incredibly sensitive situation.
Yes. In a context where someone's talking about something that is, by definition, intimately personal, they may be sharing information with others, and obviously the employer needs to go through certain internal processes in order to grant this leave. So it may be that the spread of people to whom this information is disclosed will, of necessity, grow, and there should be some confidentiality protections.
Lastly, with respect to amendment (10), this is an important amendment because this will allow modern awards and enterprise agreements to include terms relating to evidence requirements for the unpaid leave that's granted here. This is important because, as I've said, the evidentiary requirements here are going to be critical to making sure that someone feels comfortable about accessing this leave, and they may make a difference to whether or not they choose to access it, depending on who they have to tell about it. There's also going to be the question of what standard has to be met in order to access it. That is something that ought to be able to be looked at more closely by the Fair Work Commission or by parties during their enterprise agreement negotiations, so expressly permitting the evidentiary requirements to be in the modern awards or enterprise agreements would be something that would make sense. I commend these amendments to the House.
I thank the member for Melbourne for his speech, and I appreciate that he is genuinely committed to ensuring that there is an appropriate level of support for victims of domestic violence. However, I remind him and the House that the Fair Work Commission undertook an exhaustive process to strike the right balance in setting a new minimum entitlement for family and domestic violence leave, particularly around what type of leave should be available to victims. It was considered in very extensive detail by the commission. Between October 2014 and July 2018, the commission considered 68 written submissions from 27 parties, received over 2,000 pages of documentation, heard evidence from 26 witnesses and held over 11 days of hearings. Submissions were called and hearings were convened for every step in the process, and unions, employers and community groups all actively engaged in the commission's process. After carefully weighing up all of the evidence, the commission came to a very clear determination, and in its decision it explicitly stated:
… we are not satisfied, at this time, that it is necessary to provide ten days paid family and domestic violence leave to all employees covered by modern awards.
The ACTU has not provided a satisfactory explanation as to how it arrived at ten days and the evidence does not support a finding that ten days paid leave is necessary.
The government respects the integrity of the fair and balanced process by the Fair Work Commission in undertaking its decision, and this, of course, was also highlighted in the Senate Education and Employment Legislation Committee in its report on the bill, which acknowledged the considerable issues that were looked into by the Fair Work Commission and noted:
The committee did not receive evidence which would challenge the basis of the FWC's decision.
The bill will provide for five days unpaid leave, and it is the right step to take now. This bill will help protect women's job security when they need to take time off to deal with matters that can sometimes only be done in business hours—things like accessing police and related services or relocating to a safe residence.
I just want to touch on the other elements that the member spoke about. The entitlement in the bill matches the entitlement determined to be appropriate by the commission, which is for the leave to be available for an employee who is experiencing family and domestic violence themselves, rather than a close relative of the employee as has been proposed in the amendment. We believe it's important that the decision of the Fair Work Commission be respected. I also just want to note for the record that nothing in this bill prevents an employee from accessing other types of leave, such as carers leave, when the employee needs to provide care for a close relative.
I also want to touch on the confidentiality provisions that were just discussed by the member. The confidentiality provisions in the bill mirror those that are in the Fair Work Commission's model clause. These were the result of significant debate and comprehensive submissions by the parties to the Fair Work Commission and represent the accepted final position. If we were to accept any such amendments, they would ultimately undermine that.
In addition, the proposed civil penalty would be of no utility because section 44 of the Fair Work Act already contains a civil penalty for such contraventions of the National Employment Standards. Further, the maximum penalty for breaching section 44 is 60 penalty units and is therefore higher than the 30 penalty units proposed by this item.
I understand the intent that is behind the amendment, but—can I say—the bill legislates the right of family and domestic violence leave in the National Employment Standards, and it extends this to around eight million workers covered by the Fair Work Act, who will have, as a result of this bill, access to a minimum standard, and their jobs will be protected should they ever find themselves in the terrible circumstances where they need to access this right. It is, of course, a minimum standard, and of course employers who would like to go above the minimum standard are absolutely free to do so.
I don't wish to detain the House unnecessarily, but I would like recorded in the record of proceedings my support for the amendments that have been moved by the member for Melbourne. I think they are very well considered and very wise amendments—in particular, that we should increase the unpaid leave from the current five days to a more realistic 10 days and that we should expand the eligibility to include immediate family. I also support the proposition by the member for Melbourne that we should remove the requirement for someone to be eligible to access this leave only if it's impractical to attend to matters outside work hours. I also support the proposition that there be additional confidentiality provisions. I won't detain the House any longer, other than that I wish my position to be recorded.
by leave—I move amendments (1) to (18), as circulated in my name, together:
(1) Title, page 1 (line 2), omit "unpaid".
(2) Schedule 1, item 1, page 3 (after line 7), after the definition of family and domestic violence, insert:
family and domestic violence leave means:
(a) paid family and domestic violence leave; or
(b) unpaid family and domestic violence leave.
paid family and domestic violence leave means paid family and domestic violence leave to which a national system employee, other than a casual employee, is entitled under subsection 106A(1).
(3) Schedule 1, item 1, page 3 (lines 9 and 10), omit "a national system employee is entitled under section 106A", substitute "a national system employee who is a casual employee is entitled under subsection 106A(4)".
(4) Schedule 1, item 2, page 3 (line 13), omit "unpaid".
(5) Schedule 1, item 3, page 3 (line 16), omit "unpaid".
(6) Schedule 1, item 4, page 3 (line 19), omit "unpaid".
(7) Schedule 1, item 5, page 3 (line 22), omit "Unpaid family", substitute "Family".
(8) Schedule 1, item 5, page 3 (line 23) to page 4 (line 21), omit section 106A, substitute:
106A Entitlement to family and domestic violence leave
Paid family and domestic violence leave—employees other than casual employees
(1) An employee, other than a casual employee, is entitled to 10 days of paid family and domestic violence leave for each year of service with his or her employer.
(2) An employee's entitlement to paid family and domestic violence leave:
(a) accrues progressively during a year of service according to the employee's ordinary hours of work; and
(b) does not accumulate from year to year.
Note: If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid family and domestic violence leave up to when the employment ends.
(3) An employee may take paid family and domestic violence 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 agree, including periods of less than one day.
Unpaid family and domestic violence leave—casual employees
(4) A casual employee is entitled to 5 days of unpaid family and domestic violence leave in a 12 month period.
(5) An employee's entitlement to 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.
(6) For the purposes of subsection (5), the start of a casual employee's employment with a particular employer is taken to be the start of the employee's first employment with that employer.
(7) An employee may take unpaid family and domestic violence leave as:
(a) a single continuous 5 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.
(8) To avoid doubt, subsections (4) to (7) do not prevent the employee and the employer agreeing that the employee may take more than 5 days of unpaid leave to deal with the impact of family and domestic violence.
(9) Schedule 1, item 5, page 4 (line 22), omit "unpaid".
(10) Schedule 1, item 5, page 4 (line 23), omit "unpaid".
(11) Schedule 1, item 5, page 5 (after line 11), after section 106B, insert:
106BA Employee not taken to be on paid family and domestic violence leave at certain times
(1) If the period during which an employee takes paid family and domestic violence 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 family and domestic violence leave on that public holiday.
Other periods of leave
(2) If the period during which an employee takes paid family and domestic violence leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid family and domestic violence leave for the period of that other leave or absence.
106BB Payment for paid family and domestic violence leave
If, in accordance with this Subdivision, an employee takes a period of paid family and domestic violence leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
Note: For casual employees, family and domestic violence leave is unpaid.
(12) Schedule 1, item 5, page 5 (line 23), omit "unpaid".
(13) Schedule 1, item 6, page 6 (line 11), omit "unpaid".
(14) Schedule 1, item 7, page 6 (line 25), omit "an employee", substitute "a casual employee".
(15) Schedule 1, item 7, page 7 (lines 1 to 7), omit subclause 39(2), substitute:
(2) For the purposes of this clause, the start of a casual employee's employment with a particular employer is taken to be the start of the employee's first employment with that employer.
(16) Schedule 1, item 7, page 7 (line 9), omit "unpaid".
(17) Schedule 1, item 7, page 7 (line 18), omit "unpaid".
(18) Schedule 1, item 7, page 7 (line 23), omit "unpaid".
These amendments seek to achieve the following: firstly, preserve five days unpaid family and domestic violence leave for casual employees as provided for in the bill and, secondly, provide 10 days paid family and domestic violence leave for employees other than casuals. This leave will accrue over a 12-month period but will not accumulate from year to year. Consistently with other paid leave provisions in the National Employment Standards, family and domestic violence leave will be paid at the base rate of pay, and employees will not be taken to be on family and domestic violence leave during public holidays or while taking other forms of leave.
I move these amendments because we support the bill, but it doesn't go far enough. We commend the government for introducing proposed legislation that will effectively broaden the application of a decision by the Fair Work Commission, but it does not go far enough. On average, one woman a week is killed as a result of domestic violence. This is a shame; it's a scourge, a national tragedy. We need to attend to it in many ways, in multifaceted ways, and one way is to provide greater support in workplaces. This bill seeks to do that, but the second reading amendment attempted to and now these amendments I move on behalf of the opposition will improve and strengthen the support for women who are subject to violence.
Every member of this place would agree that we have to do more to respond to this crisis. We have to do more, and we can do more, and certainly in this public policy area we should do more, and we're not alone in thinking that. It's true to say, as the minister has said, that she seeks to reflect the decision of the commission. The minister also made clear that they considered the submissions made by stakeholders and people who are interested parties to these matters, but those submissions also, in many cases, supported the proposition that, to provide support in workplaces, it's an imperative that it include paid leave.
As I say, it's not that this is not already happening in workplaces. For some years now, there have been workplaces where there is paid family and domestic violence leave. I firstly want to pay tribute to the unions that have been bargaining for this right, this provision, with employers in good faith and striking agreements across all industries. That's the first thing I would like to say on behalf of employees in relation to the efforts of unions.
The second thing I would like to say that is I pay tribute to those companies who have either agreed to requests or submissions by unions, by their workers, to have such a paid entitlement, a paid right, or initiated having provisions of industrial instruments that provide paid family and domestic violence leave, and there are many. I have mentioned a few before, but I just want to go to that, because they do deserve commendation: Carlton & United Breweries, IKEA, National Australia Bank, Qantas, Telstra, Virgin Australia and many, many more.
This year we had the New Zealand government legislate paid family and domestic violence leave, guaranteeing 10 days paid leave for all workers who are experiencing violence and who need to escape. In our own state jurisdictions we have had Queensland and Western Australia offer 10 days paid domestic violence leave to their workforce, while South Australia offers 15 days and Victoria and the ACT offer 20 paid days.
Whilst that is a right, and of course it should cover anyone who is subject to violence, it is not a type or form of leave that is going to be used too often. In fact, if we do more to address violence in our society, particularly the violence that women are subjected to, then there will be far less need for such support. But the reality is that every other government gets it. Increasingly, governments are legislating to provide paid leave. New Zealand has just initiated paid leave. Flagship companies have introduced family and domestic violence leave, which is paid leave. It really seems now that the government is resisting what is becoming a clear community expectation: that there is more support for women who are subject to violence.
I believe the minister is sincere in her concerns about this issue, but I do believe the government could do better and join Labor and support these amendments, because in doing so we will see a more comprehensive bill that reflects community expectations. I think people want to see governments take a lead. I think it's fair to say on a number of social issues the government—indeed, this place, the parliament—has followed community expectation. I think it's now time to consider that there is a critical mass of support in workplaces for such a change in employment conditions.
As I say, flagship companies, state governments and other countries are providing family and domestic violence paid leave. I think we should be doing the same here. For that reason, Labor certainly wants the government to reconsider its position. I say to the crossbench: I think that you have a role here too. Given the state of the parliament and the composition of the parliament, there is a great opportunity here to provide genuine support.
Whilst this is a form of material support for women subject to violence, it is something else too. Institutionalising this form of support to women in workplaces also sends a message to those women that they should not feel the stigma that women often do feel when they are subject to such violence. Sure, this is a form of material support, but it does send a message that they should not feel so ashamed that they feel unable to speak out and seek support in their workplace or elsewhere. I do believe that if the government were to accede to these amendments we would have a more comprehensive form of support, it would reflect increasingly what's happening in workplaces anyway and it would show that the government takes this issue seriously.
A point of order, Mr Deputy Speaker: I simply ask you to review the ruling you've just given. I refer to both the standing orders and Practice. I also go to the gravity of the decision. I respect that you've taken it initially on advice, but you need to bear in mind that the impact of this ruling will be to prevent the House deliberating on the issue at all. That will be the impact.
First of all, I refer you to standing order 150. Standing order 150(a) states:
An amendment may be moved to any part of a bill, if the amendment is within the title or relevant to the subject matter of the bill and conforms to the standing orders.
You've made the ruling on the basis that the amendments are not within the title of the bill. That's true. The title of the bill deals only with unpaid domestic violence leave. But the standing orders are quite specific—either 'within the title or relevant to the subject matter of the bill'. While these amendments are not within the title of the bill, there is no doubt at all that they are relevant to the subject matter of the bill. Everything that these amendments do is within the subject matter of the bill itself—dealing with domestic violence leave. The amendments deal with the exact same clauses of the act for workers who are in the exact same catastrophic circumstances. The circumstances that these amendments deal with are identical to the circumstances that the government's bill deals with. They deal with the same clauses of the principal act but do so in a different way.
If the only thing within the standing orders were that an amendment has to be within the title of the bill, I would not be raising a point of order. I simply suggest that the ruling you've made makes the words 'or relevant to the subject matter of the bill' irrelevant, and the ruling should not make some standing orders irrelevant. Those words are not only within the standing orders; they are repeated verbatim on page 376 of the Practice.
I simply ask that you allow the House to deal with the issue. I respect absolutely that these amendments are beyond the part of the standing orders that says that an amendment can only be within the title of the bill, but that is not the only thing that the standing orders say. They specifically say 'or relevant to the subject matter of the bill'. I suggest that it is impossible to argue that these amendments do not directly deal with the subject matter of the bill that is before the House.
I thank the Manager of Opposition Business. Yes, I did take that under advice. It is saying that it is not within the subject of the bill or the title of the bill. I note that I gave the shadow minister 10 minutes to speak, and that's all on record. I think we should just put the question now that the bill be agreed to.
A point of order, Mr Deputy Speaker: I'm not pretending for a minute that I am supremely confident as to what the outcome of the vote will be on these amendments, but I will say that, while advice from the clerks will always be sought, ultimately it is the responsibility of the chair to make the final decision. I suggest that there is no reading of what's in front of us that says it is not relevant to the subject matter. We have a bill about domestic violence leave. We have an amendment about domestic violence leave. We have a bill that goes to specific sections of the Fair Work Act. We have an amendment that goes to the exact same sections of the Fair Work Act. We have a statement in standing orders that says that, if it's relevant to the subject matter, it's allowed. We have an identical statement in Practice that says that, if it's relevant to the subject matter, it's allowed. I'm simply asking: allow the House to vote on the issue. Leave was given by the government for these amendments to be moved together, and, rather than blowing the issue up further, I think the sensible path forward is simply to accept that, while these amendments are not within the title of the bill, they are certainly relevant to the subject matter of the bill.
Mr Deputy Speaker, I think the principle of what you've said on advice from the Clerk, which is that an amendment needs to be relevant to the actual bill, is the correct ruling under section 150 of the standing orders. The danger of adopting the procedure that the Manager of Opposition Business has proposed, which is basically saying, 'Well, let's have a vote anyway and see how it goes,' is that it sets a very dangerous precedent because it means that standing order 150 is not being abided by. The bill is about paid leave. The amendments are about unpaid leave. It's quite a different—
The bill is about unpaid leave, and their amendments are about paid leave. It's quite a different matter, and, as the Clerk has indicated, that is quite outside the standing orders as we understand them to be. Allowing a vote on this would be a dangerous precedent, and I put it to you that the opposition will take the opportunity to use this on every occasion that they can, turn back to this precedent and say, 'It was allowed on the Fair Work Amendment (Family and Domestic Violence Leave) Bill, so it should be allowed on this bill as well.'
No. I hear the Manager of Opposition Business asking if he should make the points of order again. It will assist the House to know I've been watching this intently in my office, so there's no need to do that unless you think you can do it better a second time.
I've heard what the Deputy Speaker has said and the basis on which he said it. I've heard the member for Gorton's contribution. I heard the ruling, and I've heard your discussion on why you think that ruling is wrong. I do have to say that, as I said, members need to know I've focused on this intently as it has been occurring, and I believe the ruling that was made is absolutely correct. I need to say that in all candour, because what the amendments seek to do is actually to completely reverse the intent of the bill from unpaid to paid. The long title of the bill is very specific: it refers to 'unpaid'. So that ruling that has been given hasn't been given on a whim. Certainly, having considered the matter, I don't have any doubt that the ruling is right. I think that, when you have an amendment that simply reverses the intent not just of the short title but of the long title and substitutes the complete opposite of what the bill is about, that is not in order. I don't think I can put it any more clearly than that.
Bill agreed to.