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A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
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Registered 05 Feb 2018
Introduced HR 05 Feb 2018
Table of contents.

2016‑2017‑2018

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Improving National Employment Standards) Bill 2018

 

No.      , 2018

 

(Mr Bandt)

 

 

 

A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Fair Work Act 2009                                                                                                     3

 

 


A Bill for an Act to amend the Fair Work Act 2009, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Fair Work Amendment (Improving National Employment Standards) Act 2018.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Fair Work Act 2009

1  Section 12

Insert:

eligible family and domestic violence leave activity: see section 103D.

eligible family and domestic violence leave relationship: see section 103E.

experiences family or domestic violence: see section 103C.

paid family and domestic violence leave means paid family and domestic violence leave to which a national system employee is entitled under section 103A.

2  Section 12 (definition of permissible occasion)

Omit “102 and 104”, substitute “102, 103H and 104”.

3  Section 12

Insert:

unpaid family and domestic violence leave means unpaid family and domestic violence leave to which a national system employee is entitled under section 103H.

4  Subsection 17(2) (note)

After “personal/carer’s leave”, insert “, family and domestic violence leave”.

5  Paragraph 61(2)(e)

After “personal/carer’s leave”, insert “, family and domestic violence leave”.

6  Paragraphs 65(1A)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  the employee engages in one or more eligible family and domestic violence leave activities in connection with an experience of the employee of family or domestic violence;

                      (f)  the employee engages in one or more eligible family and domestic violence leave activities in connection with an experience of another person, with whom the employee has an eligible family and domestic violence leave relationship, of family or domestic violence;

                     (g)  the employee provides care or support to another person:

                              (i)  with whom the employee has an eligible family and domestic violence leave relationship; and

                             (ii)  who requires care or support because of an experience of that other person of family or domestic violence.

7  Division 7 of Part 2‑2 (heading)

Omit “and compassionate leave”, substitute “, family and domestic violence leave and compassionate leave”.

8  After Subdivision B of Division 7 of Part 2‑2

Insert:

Subdivision BAPaid family and domestic violence leave

103A  Entitlement to paid family and domestic violence leave

Amount of leave

             (1)  An employee is entitled to 10 days of paid family and domestic violence leave per year.

Accrual of leave

             (2)  An employee’s entitlement to paid family and domestic violence leave for a year accrues in full:

                     (a)  at the start of the year; or

                     (b)  if the employee’s employment with the employer starts at a later time during the year—at that time.

             (3)  An employee’s entitlement to paid family and domestic violence leave does not accumulate from year to year.

103B  Taking paid family and domestic violence leave

             (1)  An employee may take paid family and domestic violence leave if:

                     (a)  the employee experiences family or domestic violence; and

                     (b)  the leave is taken to engage in an eligible family and domestic violence leave activity in connection with that experience of family or domestic violence.

             (2)  An employee may take paid family and domestic violence leave if:

                     (a)  another person experiences family or domestic violence; and

                     (b)  the employee has an eligible family and domestic violence leave relationship with the other person; and

                     (c)  either:

                              (i)  the leave is taken for the employee to engage in an eligible family and domestic violence leave activity in connection with that other person’s experience of family or domestic violence; or

                             (ii)  the other person requires care or support because of that experience of family or domestic violence, and the leave is taken for the employee to provide care or support to that other person.

             (6)  An employee may take paid family and domestic violence leave as:

                     (a)  a single continuous 10 day period; or

                     (b)  any separate periods.

             (7)  An employee may take paid family and domestic violence leave during a particular period even if the employee could instead take another kind of leave for that period.

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

103C  When a person experiences family or domestic violence

                   A person (the first person) experiences family or domestic violence if:

                     (a)  the first person experiences violent, threatening or other behaviour by another person (the second person); and

                     (b)  the first person has an eligible family and domestic violence leave relationship with the second person; and

                     (c)  the behaviour coerces or controls the first person, or causes the first person to be fearful.

Example:    Behaviours to which this section may apply include (but are not limited to) the following:

(a)    an assault;

(b)    a sexual assault or other sexually abusive behaviour;

(c)    stalking;

(d)    repeated derogatory taunts;

(e)    intentionally damaging or destroying property;

(f)    intentionally causing death or injury to an animal;

(g)    unreasonably denying the first person the financial autonomy that the first person would otherwise have had;

(h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the first person, or the first person’s child, at a time when the first person is entirely or predominantly dependent on the second person for financial support;

(i)     preventing the first person from making or keeping connections with his or her family, friends or culture;

(j)     unlawfully depriving the first person, or any member of the first person’s family, of his or her liberty.

103D  Meaning of eligible family and domestic violence leave activity

                   Each of the following is an eligible family and domestic violence leave activity:

                     (a)  receiving counselling or otherwise attending an appointment with a person who provides support to survivors of family or domestic violence;

                     (b)  receiving medical attention;

                     (c)  receiving legal advice;

                     (d)  attending legal proceedings;

                     (e)  relocating or making other safety arrangements;

                      (f)  any other activity associated with an experience of family or domestic violence.

103E  Meaning of eligible family and domestic violence leave relationship

                   A person (the first person) has an eligible family and domestic violence relationship with another person (the second person) if:

                     (a)  the second person is a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the first person; or

                     (b)  the second person is a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the first person; or

                     (c)  the second person is related to the first person under Aboriginal or Torres Strait Islander kinship rules; or

                     (d)  if the first person is a member of a community that accepts relationships other than those referred to in paragraphs (a) and (b) as kinship ties—the second person is a person who is accepted by that community to be related to the first person.

103F  Employee taken not to be on paid family and domestic violence leave at certain times

Public holidays

             (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.

103G  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:

                     (a)  for an employee other than a casual employee—at the employee’s base rate of pay for the employee’s ordinary hours of work in the period; or

                     (b)  for a casual employee—at the employee’s base rate of pay, plus any casual loading that the employer would be required to pay the employee, for the hours of work in the period for which the employee was rostered.

Subdivision BBUnpaid family and domestic violence leave

103H  Entitlement to unpaid family and domestic violence leave

                   An employee is entitled to 2 days of unpaid family and domestic violence leave for each occasion (a permissible occasion) when:

                     (a)  the employee experiences family or domestic violence; or

                     (b)  another person, with whom the employee has an eligible family and domestic violence leave relationship, experiences family or domestic violence.

103J  Taking unpaid family and domestic violence leave

             (1)  An employee may take unpaid family and domestic violence leave for a particular permissible occasion if:

                     (a)  the leave is associated with the employee engaging in an eligible family and domestic violence leave activity in connection with the experience of family or domestic violence referred to in paragraph 103H(a) or (b); or

                     (b)  the other person who experienced family or domestic violence as referred to in paragraph 103H(b) requires care or support because of that experience, and the leave is taken to provide care or support to that other person.

             (2)  An employee may take unpaid family and domestic violence leave for a particular permissible occasion as:

                     (a)  a single continuous period of up to 2 days; or

                     (b)  any separate periods.

             (3)  An employee cannot take unpaid family and domestic violence leave during a particular period if the employee could instead take paid family and domestic violence leave.

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

Subdivision BCNon‑disclosure of information

103K  Information relating to taking of family and domestic violence leave not to be disclosed

Unauthorised disclosure of information

             (1)  Subsection (2) applies to the following information:

                     (a)  information obtained by an employer that an employee has given notice of the taking of paid family and domestic violence leave or unpaid family and domestic violence leave;

                     (b)  any other information obtained by an employer relating to an employee taking, or proposing to take, paid family and domestic violence leave or unpaid family and domestic violence leave.

             (2)  The employer must not disclose the information to any other person if the information may enable the employee to be identified.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (3)  Subsection (2) does not apply if:

                     (a)  the disclosure is to the employee; or

                     (b)  the disclosure is reasonably necessary for the purposes of enabling the employee to take the leave; or

                     (c)  the disclosure is required or authorised by or under a law; or

                     (d)  the employee has consented, in writing, to the disclosure.

Note:          Paragraph (b) may (for example) permit disclosure to persons who process leave taken by the employee (for example, human resources or payroll staff).

Unauthorised secondary disclosure

             (4)  A person who obtains information under paragraph (3)(b) must not disclose the information to any other person.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (5)  Subsection (4) does not apply if:

                     (a)  the disclosure is to the employee or the employer; or

                     (b)  the person discloses the information for the purposes for which the information was disclosed to the person; or

                     (c)  the disclosure is required or authorised by or under a law; or

                     (d)  the employee has consented, in writing, to the disclosure.

Note:          Information to which this section applies that is personal information may also be regulated under the Privacy Act 1988.

9  After paragraph 107(3)(b)

Insert:

                   (ba)  if it is paid family and domestic violence leave—the leave is taken for a reason specified in section 103B; or

                   (bb)  if it is unpaid family and domestic violence leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103J(1); or

10  Subsection 107(5)

After “unpaid carer’s leave”, insert “, paid family and domestic violence leave, unpaid family and domestic violence leave”.

11  Section 107 (note)

Omit “Note”, substitute “Note 1”.

12  At the end of section 107

Add:

Note 2:       Information obtained by an employer relating to the taking of family and domestic violence leave is also regulated under section 103K.

13  Subsection 539(2) (after table item 5)

Insert:

 

Part 2‑2—National Employment Standards

5AA

103K(2)

103K(4)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit Court

 

30 penalty units

 

14  In the appropriate position in Schedule 1

Insert:

Part 8Amendments made by the Fair Work Amendment (Improving National Employment Standards) Act 2018

  

39  Entitlement to paid family and domestic violence leave

             (1)  Subject to subclause (2), Subdivision BA of Division 7 of Part 2‑2, as inserted by the Fair Work Amendment (Improving National Employment Standards) Act 2018, applies in relation to the year in which this clause commences and to each later year.

             (2)  Subdivision BA of Division 7 of Part 2‑2, as inserted by the Fair Work Amendment (Improving National Employment Standards) Act 2018, applies in relation to the year in which this clause commences as if the reference in paragraph 103A(2)(a) to the start of the year were instead a reference to the commencement of this clause.