Carol Brown (Tasmania, Australian Labor Party, Assistant Minister for Infrastructure and Transport) Share this | Hansard source

I thank all honourable senators for their contributions to the debate on the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022. Many of the contributions were not easy speeches for people to give. Where there have been different views on the best way forward, those views have been put very respectfully. I also thank honourable senators on the Senate Education and Employment Legislation Committee for their inquiry into the provisions of this bill.

This bill is an important step towards making sure no person is denied the opportunity to live a life free of family and domestic violence simply because they cannot afford to escape. This government believes in the fundamental right of all employees in this country to feel safe in their homes and in their workplaces. The choice between their safety and their income is an impossible one that millions of workers in Australia still regularly face. This is unacceptable, and it must change.

This bill will provide employees with 10 days of paid leave each year to deal with the impacts of family and domestic violence. Family and domestic violence doesn't discriminate based on whether you're a permanent or a casual worker; in fact, those experiencing family and domestic violence are more likely to be in casual work. This paid leave will therefore be available to full-time, part-time and casual employees. The 10 days leave will be provided upfront, allowing immediate access to the full entitlement from the commencement of employment so that those experiencing family and domestic violence can deal immediately with its effects without compromising their income security.

Rather than being paid at the base rate of pay, leave will be paid at the rate the employee would have received had they not taken leave. The principle behind this is simple—getting out shouldn't mean losing pay. Normally, leave entitlements are calculated at the base rate of pay, but applying the principle 'getting out shouldn't mean losing pay' requires a different approach. To provide certainty to both employers and employees about the pay they should receive, casual employees will be paid for rostered shifts, including where a shift has been offered and accepted. Casuals who are not rostered on will still be entitled to leave without pay when they need to be unavailable for work to deal with the impacts of family and domestic violence. This means they will always be protected from losing their jobs when they need to take leave. When they are rostered on, the paid leave entitlement will be there.

The bill also reflects the changing nature of Australian society, where more people have diverse living situations. The bill amends the definition of 'family and domestic violence' to ensure violent or abusive behaviour in intimate relationships, regardless of whether partners are cohabiting, will be covered to allow employees to take paid leave to seek necessary assistance.

The government will move two amendments in the Senate, making technical changes to the Fair Work Act to enable the making of regulations that specifically prevent the listing of 'family and domestic violence leave' on a employee's payslip, and making technical updates to the Fair Work Commission's new dispute resolution mechanism in relation to existing enterprise agreements. The government listened to stakeholder concerns around payslips, including concerns raised by small business, payroll providers and the National Women's Alliances. We recognise that, for those in situations of coercive control or where a perpetrator has access to their partner's financial records, the appearance of 'family and domestic violence leave' on a payslip could put the employee taking leave at risk. The other amendment responds to the Fair Work Commission's submission to the Senate Education and Employment Legislation Committee's inquiry into the bill. This amendment is needed to ensure the provisions operate as intended.

Support for small business is essential. The intention of this bill is to make clear that family and domestic violence must be addressed in the workplace, not just left to the social and community or criminal justice sectors. As such, it is important to recognise that employers are partners in this process. This is particularly true for small businesses, which have a uniquely close relationship with their employees but which don't have the human resources expertise and resources available to larger businesses. The entitlement has a phased commencement to assist business to implement this entitlement. Most businesses would have around six months from the date of introduction, and small businesses will have an additional six months to prepare.

The small business assistance package announced in the budget provides $3.4 million over four years to deliver a range of holistic supports to help small businesses implement paid family and domestic violence leave, including: updating and increasing resources for workplace relations advice and education tools delivered by the Fair Work Ombudsman; funding to support peak bodies to develop tailored workplace relations guidance and support; and, in addition, specialist family and domestic violence information support and training through the existing 1800RESPECT and DV-alert program will also be available to small businesses so that they can assist victim-survivors to access support services. Together, these measures will ensure that small businesses can access the right advice at the right time to provide the best support to their employees who are experiencing family and domestic violence.

Passing this bill is an important step, but the government recognises that we need to make sure this leave entitlement is working for both employers and workers who are experiencing family and domestic violence. An important part of this will be looking at how this leave entitlement is supporting workers who are experiencing family and domestic violence, and whether the supporting guidance the government will provide to businesses is adequate. The government is therefore committed to implementing the recommendation of the Senate Education and Employment Legislation Committee to undertake an independent review of the provisions of this bill 18 months after its commencement. This important review has been expressly funded through the budget's small business assistance package. The review will assess the effectiveness and scope of the bill, along with assessing the adequacy of the support and guidance available to businesses to assist with implementation of the bill.

The government has already committed to a detailed, timely and extensive review of the provisions. Therefore we do not support the opposition's amendment for an independent review, which is both unnecessary and poorly designed, noting that it does not refer to assessing the impact of the amendment on victim-survivors; only puts six months of operation for small business in scope; and imposes a three-month reporting deadline, which is insufficient to undertake qualitative and quantitative research while applying a sensitive trauma informed methodology.

There are several issues that have been raised during debate on this bill and in the Senate inquiry that are important to address. There have been some concerns that the bill may also provide leave to perpetrators of family and domestic violence. Others have called for the leave to be expanded so that perpetrators who are seeking professional help can then access this leave. To be entirely clear: an employee will only be able to take this leave if they are experiencing family and domestic violence. An employee cannot take paid family and domestic violence leave provided by the bill for violence that they themselves perpetrate. The government is aware that some jurisdictions and organisations offer leave for perpetrators in certain circumstances. That may assist some perpetrators who are seeking to change their abusive behaviour but it 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 note suggestions from the opposition and the Australian Greens to ensure that information, resources and supports are available for small business and victims-survivors for commencement of this entitlement. The government has been consulting on a small business assistance package. This will ensure that clear and comprehensive guidance is available to employers to help them to understand their obligations and to refer their employees to appropriate supports.

Honourable senators have proposed other amendments including further expanding the definition of 'family and domestic violence', providing additional unpaid leave on top of paid leave, combining family and domestic violence leave with compassionate leave to create a new form of emergency leave, expanding the definition of 'discrimination' under the Fair Work Act, expanding the examples in a legislative note under 106B(1), providing discretion for additional leave in advance by agreement and clarifying the reporting obligations for employees with respect to paid family and domestic violence leave.

The government does not support these amendments. Some are unnecessary. Others would expand the scope of the legislation. It is important to get the balance right. The legislation in front of us is world leading. We are taking a step that hasn't been taken by any other government around the world, but we don't want to take the scope further than we have. Everything we've done so far has been based on that very simple test of making sure that workers are not choosing between safety and their pay. An independent review of the provisions of this bill will occur in 2024 which will look at the effectiveness and scope of the bill along with assessing the adequacy of support and guidance available to business.

Paid family and domestic violence leave joins the range of tools available to address violence against women and children. This government acknowledges the resistance and resilience of victims-survivors of family and domestic violence and is committed to providing the national leadership and investment needed to address family and domestic violence. This is demonstrated through the government's October 2022-23 budget which invested a total of $1.7 billion over six years for women's safety because ending violence against women and children is a national priority. This investment will support the National Plan to End Violence against Women and Children 2022-2032 which will guide efforts and actions over the next decade towards the vision of ending gender based violence in one generation.

This bill, by itself, will not solve the problem of family and domestic violence. There is much more work to be done. But it does mean that no employee in Australia will ever be forced to reckon with a choice between earning a wage and protecting the safety of themselves and their family.

I thank all senators who have spoken in this debate for their support of this historic legislation, and I commend the bill to the Senate.