Legislative Council: Tuesday, March 21, 2023


Fair Work (Family and Domestic Violence Leave) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 February 2023.)

The Hon. T.A. FRANKS (16:42): I rise to speak briefly on behalf of the Greens in support of this legislation. Violence against women and children is a problem of epidemic proportions in Australia. One in three women has experienced physical violence since the age of 15 and one in five has experienced sexual violence. On average, a woman is killed by an intimate partner every 10 days in this country. Rates of violence are even higher for certain groups, including Aboriginal and Torres Strait Islander women.

At least 700 women have been murdered since the first National Plan to Reduce Violence against Women and their Children was adopted 12 years ago. Over 50 women were killed by violence in 2022 and the demand for domestic violence services continues to grow. Even one death due to domestic violence is one too many.

Research shows that in the 2014-15 year the cost to the Australian economy of those experiencing physical violence, sexual violence or emotional abuse by a partner was $12.6 billion and by 2015-16 the cost had increased to $22 billion. It can only be assumed that the impact of COVID-19 on households will have had an even greater financial and personal cost.

The indirect psychological impacts of family and domestic violence include pain, fear and suffering. Replacing damaged household items, changing schools, leaving home and settling a partner's debt not only take time but a very significant cost comes with them. All of these indirect costs are not counted.

The President of the ACTU, Ged Kearney, said family and domestic violence was an 'insidious issue' and that addressing it enables women, men and children to escape the cycle of violence. She emphasised;

If we don't do something now, we will be guilty of turning a blind eye to the single biggest contributor to death, illness or disability of women between 15 and 44 years of age.

Research into workplaces that have existing family and domestic violence leave policies in place shows it can have significant benefits for affected employees, their employers and those workplaces.

The changes proposed in this bill will have an enormous impact on those who need it. Many people are victim survivors of family and domestic violence and may not be able to afford to take five days of unpaid leave. This bill provides that all employees, no matter their working hours, are entitled to up to 15 days of paid leave each year. Importantly, this leave is paid at the employee's full rate of pay, including any overtime, allowances or other loadings.

Maintaining stable employment is an important measure to help support people to escape abusive relationships. The introduction of paid leave is intended to allow victims of family and domestic violence to take time off work without losing their income, without losing their job, to help them exit dangerous and harmful domestic situations. Workers escaping family and domestic violence situations will no longer have to choose between their safety and keeping their job and putting food on the table, although it should never have been the choice that our society made them take to ensure their safety or the safety of their loved ones.

While this bill is an important step, we still need to address the underlying factors that lead to this abuse. We need better education about what respectful relationships look like. We need to address poverty and access to the necessities, such as housing, which plays a pivotal role in reducing violence in our communities. In fact, it is our job in this place to ensure that we use our political will and our political capital to make those life-altering changes to preserve, value and respect particularly the lives of women. Again, to quote the President of the ACTU:

Cultural change is not enough, action must be taken to support workers affected by violence and establishing a basic standard on paid leave will ensure that all workplaces do this.

With that, I commend the bill.

The Hon. H.M. GIROLAMO (16:47): I start this speech with the declaration that domestic violence in the community is insidious and any action that prevents violence in the community is one that the opposition will support. I am the lead speaker on this bill and the sole speaker for the opposition. As my colleague in the other place said in the second reading, we wholeheartedly support the intentions of this bill. From the outset, I think it is very evident that this is a bipartisan issue. The prevention of family and domestic violence, indeed any community violence but especially family and domestic violence, is one that all parties in parliament should and do seek to eradicate.

In short, this bill makes changes to state family and domestic violence leave arrangements to allow greater access and support, and also includes the promotion and facilitation of gender equity as an object of the Fair Work Act. The bill will provide that leave entitlements may be accessed for any purpose relating to an employee dealing with the impact of family and domestic violence. This could include, but is not limited to, attending medical appointments, seeking legal advice and attending legal proceedings, and also relocating residence.

The bill seeks to safeguard the employer by allowing them to request proof or evidence that would satisfy a reasonable person that leave is being taken for one of these purposes and also makes it a criminal offence for an employer to disclose information obtained through these processes without the consent of the employee to which the information relates.

In early February, I stood on the steps of parliament, a few metres from here, with many women in this place and in the other place to pay our respects to Australian women murdered in 2022. My colleague the shadow minister for women and the Minister for Women in the other place were guest speakers. In 2022, there were at least 55 women tragically murdered. We know that the most dangerous time for women and children seeking to escape family or domestic violence is when they take action to leave. This bill will assist in supporting that brave action and will also assist in ensuring appointments—legal, medical or any other that relates to domestic violence suffered—can be attended.

This bill is also a good use case of bipartisanship, for, between the houses, the government has sought to amend this bill with an agreement suggested by my colleague the member for Colton in the other place. During committee in the other place, the opposition asked a number of questions about the functionality and mechanisms of this bill, seeking to lessen the danger for those seeking to escape violence and not creating a danger or any unintended consequences.

We know that there will be government amendment to this bill that brings additional confidentiality provisions to pay slips. This ensures that the term 'domestic violence leave' is not specifically recorded on a pay slip or similar and fixes a possible unintended consequence, one that could have had devastating outcomes by inadvertently exposing someone seeking or having domestic violence leave. The amendment also mirrors the federal legislation in the Fair Work Act 2009.

As I said at the start of my speech, domestic and family violence is an insidious blight on our community, and this bill seeks to make a small step towards its eradication by supporting the victims. I commend the bill to the house.

The Hon. C. BONAROS (16:51): I rise on behalf of SA-Best to speak in support of the Fair Work (Family and Domestic Violence Leave) Amendment Bill 2022. In doing so, I echo the sentiments of my colleagues from across the chamber and the political landscape. This bill has been a long time coming, and, frankly, I think that all of us would agree that a scheme like this should have been implemented years ago. That said, I am pleased to see the government implementing family and domestic violence leave now by legislation.

Our judicial system has taken steps to recognise the importance of a paid leave scheme for family and domestic violence victims, resulting from the family and domestic violence leave review carried out by the Fair Work Commission in 2021. The bill provides a much-needed safety net for those experiencing the devastating and often ongoing effects of domestic violence and stands as acknowledgement that family and domestic violence comes in all manner of forms that are not immediately visible to others but have the same crippling and devastating effects.

It is a step in the right direction in acknowledging the need to identify with the added and particular externalities impacting a person's life when they are a victim of family and domestic violence. Domestic violence, as we have heard and as we all know, has a huge impact on victims in the workplace in South Australia. A supportive, non-pecuniary scheme to enshrine victims' rights, as they relate to the workplace, is well overdue.

The scale of issues that domestic violence victims face is expansive, as we know, ranging from disputes over parenting arrangements, ongoing safety concerns, and accommodation—be it urgent or struggling with long-term options—to being discriminated against unfairly in the workplace because of the deferment of personal resources required by a person experiencing family and domestic violence away from their workplace, which inevitably results in discrimination.

People experiencing domestic violence have varied experiences and restrictions imposed on them. For instance, many victims may be prevented from attending job interviews or participating in training opportunities due to fear of their abuser. The level of emotional stress that many family and domestic violence victims experience is monumental, which can have significant impacts on the victim's ability to concentrate, to make decisions, to complete tasks in the workplace and to be present in the workplace. That these victims are able to even carry out their workplace responsibilities at all is a true testament to their strength while facing overwhelming personal crises and circumstances.

So it is a step in the right direction to guarantee that affected employees in South Australia can take time off work to seek help, attend legal proceedings and court dates, find suitable accommodation and access medical and other support services without sacrificing their financial security and avoiding plunging the victims into financial hardship.

Essential to this bill is the recognition that until recently people experiencing family and domestic violence could be discriminated and marginalised in workplaces due to the stigma associated with being a victim. The bill, I am pleased, seeks to promote the protection against discrimination through a confidentiality process applied to the leave form which no longer requires family and domestic violence to be recorded as the category of leave type, and information pertaining to family and domestic violence is not shared between agencies. I note that there are some further changes that we will see to deal with that.

I note that the bill does not prescribe a threshold of evidence required should an employee request further particulars, but the Attorney has assured us in his second reading that the threshold is not intended to be high, as evidence such as police documents, referrals from health practitioners and support services, court documents, as well as personal letters or stat decs would suffice.

I think there is some concern that we have raised about the requirement for victims who are in circumstances which are unique and where escaping family and domestic violence is a matter of urgency but, due to the nature of the abuse, a victim may not have any formal documentation as evidence in support of family and domestic violence leave, or where no documentation of family and domestic violence exists because of the oppressive nature of the abuser and fears that victims have in relation to retribution which, unfortunately, is a lot more common than we might otherwise believe.

While the bill only goes so far as to cover the public sector, critically it also encompasses provision for casual workers, which is a very positive step. The 2020-21 Family and Domestic Violence Leave Review found that women experiencing family and domestic violence are more likely to be employed in a casual part-time work role when compared with women who have not experienced family or domestic violence. That is a shocking statistic, but it is also evidence as to why it is important that casual workers be covered by the scope of the bill. An annual Bureau of Statistics personal safety of Australians survey in 2016 found that one in three—or 31 per cent—of women have experienced physical and/or sexual violence perpetrated by a man they know, and one in four—or 23 per cent—experienced physical and emotional abuse by a current or former partner.

The Hon. Ms Girolamo pointed to the Pay Our Respects event—I think it is the fifth one now—that we all attend on the steps of Parliament House. It is a very sobering and sad reality for so many women in particular who find themselves in this position: one a week, 55 at the last event held. None of these protections have been able to offer the safety net that those women needed to keep them alive.

We know what those statistics are and how terrible they are. I cannot help but think that every time I look at that crowd there is not a dry eye on the steps of parliament and we all leave there feeling sad and terrible and asking, 'What can we do?' It is not often enough, I think, that we address these issues in this place. We know that they are absolutely intertwined and interrelated with other issues and gender inequality more broadly.

Just last week I was pleased to attend an event that the Minister for Women hosted, Seeing the Signs, a coercive control event where Hannah Clarke's parents attended and spoke, together with a panel of experts, about the coercive control bill that will be debated soon in this place. I think the reason I point to these things is that they are all intertwined, they are all interlinked, they all tie back to issues of gender equality, and we should not be looking at them in isolation but rather as a package of measures that are all aimed at ensuring that people who are victims of these crimes have as many safety nets available to them as possible.

There are statistics from 2021 looking at average weekly earnings. The full-time gender pay gap sits at 14.2, with women earning on average $261.50 less than men, with women spending on average 32 hours a week on household labour—and with 85 per cent of that household work and caring for children done by women—compared with just 19 hours for men.

The 2021 Family and Domestic Violence Leave Review found coercive control, which I have alluded to, in particular played a significant determining factor in women experiencing family and domestic violence. Victims opted for casual work due to perpetrators discouraging or preventing family and domestic violence victims from obtaining full or part-time work.

For these reasons, it is critical that these provisions cover casual workers, as I said, particularly where victims of family and domestic violence are in the process of leaving an abusive situation or at ongoing risk from perpetrators but, also, more broadly in the context of looking at all these issues in a holistic way. A failure to do so would, of course, have the potential to undermine the ultimate purpose and policy objectives of the bill: to ameliorate further financial difficulties for workers seeking to manage and exit family violence situations.

The government has sought to strike the right balance with the provisions relating to casual workers, as I have said. I think the one question we probably all asked at the briefing was why, in terms of the federal legislation, we have a situation where there are 10 days federally and 15 days in this bill. I think we are all delighted to know that that is purely because a determination had already been made in South Australia by the Commissioner for Public Sector Employment, first in 2015 and I think again in 2018, that in this jurisdiction—well before any federal amendments were anticipated—we would provide 15 days of special leave for public sector employees who are subject to family and domestic violence.

It does seek to stay in keeping with the determination that is already in place. If we simply adopted the federal position, we would actually be going backwards in terms of the situation that public sector employees have found themselves in in recent years as a result of that determination by the commissioner. I think that is a really important point to make in terms of the distinction between this bill and the federal bill and why we have stuck to the 15 days.

I think also it is important just to highlight that leave will be broadly available to all of those employees, regardless of the length of service that they have undertaken. It does not matter if you have been there for a short period or a long period or something in between, which would obviously serve to benefit those people who have not been in the job for very long.

I am pleased that the bill takes consideration of the definition of domestic and family violence from the Intervention Orders (Prevention of Abuse) Act 2009 to ensure the intention to expand the relationships that may give rise to family and domestic violence for the purposes of leave entitlement encompass psychological and emotional complexities that exist in such matters. We know that all too often they are the overwhelming factors that victims of this behaviour are faced with and the ones that are also more likely in many cases to prevent them from being able to attend work and do their normal duties.

With those words, I again echo the sentiments of my other honourable colleagues in this place and look forward to seeing the passage of this important piece of legislation and look forward to it being accompanied by a number of other equally important pieces of legislation, all aimed at addressing the same issues which we have highlighted today.

The Hon. R.P. WORTLEY (17:04): I rise to support this bill today. The bill introduces a new minimum employment condition for public sector and local government employees of 15 paid days of family and domestic violence leave each year. The bill also amends the objects of the Fair Work Act to include promoting and facilitating gender equity to ensure this is taken into account by the South Australian Employment Tribunal when determining future industrial entitlements. This follows the 10 days of paid family and domestic violence leave introduced for private sector employees by the Albanese Labor government last year. This came into effect from February 2023.

Family and domestic violence leave can be used for any purpose relating to the worker experiencing family and domestic violence, including but not limited to attending medical appointments, court proceedings, receiving legal advice and relocating residences. This leave is an important safeguard to make sure that people attempting to escape family and domestic violence situations do not have to choose between their safety and independence on one hand and their economic security on the other.

Addressing domestic and family violence is one step towards closing the gender pay gap, as women who experience violence are more likely to fall behind in their careers into low-paid and casual work or out of the workforce entirely. A worker should not suffer financial disadvantage for choosing to access these entitlements. That is why, unlike other leave entitlements, family and domestic violence leave is calculated, including any penalty rates or overtime payments a worker receives. This is also why this leave is available to all employees—full time, part time and casual.

The bill also includes robust confidentiality requirements so that employees can have confidence their personal information will be treated appropriately. Employers cannot copy or retain evidence provided by the employee to support their leave claim. Employers are also prohibited from requesting information from an employee about the nature and extent of the domestic violence they are experiencing.

The bill makes it a criminal offence for an employer to disclose information obtained through these processes without the consent of the employee to whom the information relates. The government has also filed an amendment in the Legislative Council to insert an additional confidentiality provision, which requires that pay slips must not expressly identify that an employee has accessed family and domestic violence leave. This leave may, for example, instead be described as special leave, miscellaneous leave or other leave. This amendment addresses concerns that an employee may be exposed to a safety risk if a perpetrator became aware that the employee was accessing family and domestic violence leave.

Enshrining this leave will send a clear message to our community and to workers and their families that their government and the biggest employers in the state—the public sector and local government—do not and will not tolerate domestic violence.

One in four women has experienced intimate partner violence since the age of 15. One in four women has experienced emotional abuse by a current or former partner since the age of 15. On average, a woman is killed by an intimate partner every 10 days. Rates of violence are even higher for certain groups, such as Aboriginal and Torres Strait Islander women. Ninety-five per cent of people who have experienced physical or sexual violence name a man as the perpetrator of at least one incident of violence, and around four in five family and domestic violence offenders are men.

Violence against women and children costs the national economy $26 billion each year, with victim survivors bearing approximately 50 per cent of that cost. Violence against women affects all aspects of their lives. It can have a negative impact on their capacity to attend work, with 48 per cent of women who have experienced domestic violence saying that it reduced their attendance at work. Violence against women and children is also a leading cause for homelessness for women and children. Children exposed to domestic violence experience long-lasting effects on their development, health and wellbeing.

Broader domestic violence commitments and messaging: our government has a strong vision for achieving gender equality and ending the scourge of domestic, family and sexual violence and other forms of disrespect and discrimination that disproportionately affect women in our community. Our government is committed to working alongside service providers, women's organisations, women experiencing domestic violence and other stakeholders to use all possible levers to prevent and end domestic violence.

We are committed to enacting a range of legislative change, preventative actions and policies and options for recovery that help women stay safe. We are committed to working with the finance and real estate industries to determine how we can ensure victims of domestic violence do not bear the brunt of mortgages, loans and rent that often go unpaid as a result of domestic violence.

We have already restored the $800,000 of funding over four years to the Women's Domestic Violence Court Assistance Service that was cut by the former government. This important service helps women with intervention order applications, variations and revocations; ending tenancy; and liaising with police to report breaches of intervention orders and other domestic violence issues.

Our government has also reinstated the $1.2 million of funding to Catherine House that was cruelly cut by the former government. Catherine House is an incredible service offering a safe and secure place for women experiencing homelessness, often as a result of domestic violence.

Our government is staunchly committed to making a real difference to the lives of women in South Australia. We will continue to relentlessly speak up and act to prevent and end domestic violence. Domestic, family and sexual violence has no place in our community. I support this legislation. I think it is very important for the fact that, as with the previous bill, we have an obligation to protect everyone in our society, in particular women, who are the most vulnerable when it comes to domestic violence. So I ask the chamber to support this bill.

The Hon. E.S. BOURKE (17:10): I also rise to speak in support of the Fair Work (Family and Domestic Violence Leave) Amendment Bill. For too long as a society we have dealt with family and domestic violence like it is not there. We have dealt with it like it is a private matter, by pretending that the violence that occurs in some relationships and families does not exist. But the statistics cannot be ignored any longer. We know that on average a woman is killed by an intimate partner in Australia every 10 days. One in four women have experienced intimate partner violence since the age of 15. The same statistics apply for emotional abuse.

This is also of deep concern in relation to autistic women. We also know that rates of domestic and family violence are higher for women living with a disability. This is also true for autistic women, with a recent French study estimating that nine in 10 autistic women had experienced sexual violence and six in 10 had experienced physical violence. Difficulties reading body language and the lack of social networks can make it harder for autistic women to recognise signs of abuse. Autistic women are also more likely to be underemployed and therefore more financially reliant on the abusive partner, making them even more vulnerable.

In its report from last year the Senate Select Committee on Autism noted that it is often harder for autistic women experiencing violence to find adequate support, caught between disability services and domestic violence services, neither of which are equipped to deal with autistic people, at times. Navigating the justice system is difficult for anyone, but it can seem impenetrable for autistic women, particularly when there is a lack of understanding by the courts about autism.

This bill is part of the Malinauskas government's strategy to treat family and domestic violence with the seriousness that it deserves. The bill makes it easier for women to escape violence so that those who cannot afford to take time off work because of family violence are able to do so. This bill recognises that not only are victim survivors' lives threatened by family and domestic violence but also their livelihoods. It should not be that way.

The bill brings consistency to the workplace entitlements of public sector and local government employees. Currently, public sector employees are entitled to family and domestic violence leave by way of a determination of the Commissioner for Public Sector Employment. Local government employees' access to this leave is dependent on their awards and enterprise agreements. The bill will clear up these inconsistencies by providing 15 days of paid domestic violence leave to all South Australian public sector and local government workers.

It follows federal legislation introduced by the Albanese government that came into effect in February this year and which provides for 10 days' family and domestic violence leave for private sector workers. This is what Labor governments do. We legislate for a fairer society for the betterment of the most vulnerable members of our community.

These initiatives come about in large part because of the work of union movements. I would particularly like to acknowledge the SDA, which has campaigned for many years for paid leave for workers experiencing domestic violence.

The murder of Carole Schaer by her estranged husband while she was at work in the Myer Centre in Adelaide in 2004 was one terrible reminder that domestic violence affects all aspects of victims and their lives. Carole went to work at the age of 61 to work in the handbag and shoe section, and she did not come home one day in 2004. She had worked in the Myer department store for seven years and was murdered by her estranged husband.

It shows us that unions, employers and workplaces have a role in protecting and supporting women experiencing domestic violence. Often, family and domestic violence is hidden, but when tragedy occurs so publicly, it makes it so much harder to ignore. If something good can come out of this horrific tragedy, I hope this is it. Of course, there have been too many such incidents to name and too many more to hear about. On average, police in Australia deal with a domestic violence call every two minutes. That is a statistic that is hard to fathom.

This bill not only makes sense from a social justice perspective but also from an economic perspective. The economic fallout, which has been mentioned many times in this chamber, of violence against women and children is approximately $26 billion a year, with about 50 per cent of the costs being borne by victim survivors. It costs around $18,000 for a woman to leave an abusive relationship. Some women take the difficult decision that the cost is just too much.

We know that women bear the brunt of caring responsibilities for children or for their elderly parents, so their annual leave and sick leave are often depleted caring for others. This bill means that women experiencing domestic violence no longer have to use their annual leave or sick leave for medical appointments, to seek legal advice, or even to attend court or to move home.

Importantly, the leave entitlements provided by this bill apply to all categories of workers, full time, part time and casual. They are also calculated to include any penalty rates that a worker receives. This will help reduce the gender pay gap and will mean that women will not have to leave their job in order to leave a violent relationship. This will help make it easier for women to leave their abuser, and that is without question a good thing, but we must also change the way in which we speak about family and domestic violence and stop asking, 'Why doesn't she leave?' and ask instead, 'Why does he do it?'

We need a social shift in our attitudes and approaches. By flipping this question and calling out the perpetrator for their behaviour, we might see a reduction also in the rates of domestic and family violence. As also has been said in this chamber today, many of us often stand on the steps of parliament to take part in the Pay Our Respects event, with people representing each person who has been killed that year through domestic violence. I hope we can take that message from the steps of parliament and now onto the floor of parliament so we can make real, lasting change.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:17): I thank all contributors at the second reading stage of this important bill: the Hon. Heidi Girolamo, the Hon. Tammy Franks, the Hon. Connie Bonaros, the Hon. Russell Wortley and the Hon. Emily Bourke. I look forward to the passage of this bill this afternoon through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [IndRelPubSec–1]—

Page 5, after line 35 [inserted Schedule 3B, clause 5]—After subclause (3) insert:

(4) A pay slip provided by an employer to an employee must not include any of the following information:

(a) information indicating that leave taken by the employee was family and domestic violence leave;

(b) information indicating that an amount paid to the employee was payment in respect of family and domestic violence leave;

(c) information relating to the balance of the employee's entitlement to family and domestic violence leave.


For example, a pay slip may, in respect of an amount paid to an employee for any family and domestic violence leave taken, describe the leave taken as 'special leave', 'miscellaneous leave' or 'other leave'.

This is a simple amendment but it makes an important change to the bill, as the opposition has commented upon. It is consistent with the provision that is in the commonwealth parliament and now reflected in section 536(2)(c) of the Fair Work Act 2009. It clarifies that where an employee accesses family and domestic violence leave entitlements, their pay slip should not identify that that is the category of leave that has been taken.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:20): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 17:20 the council adjourned until Wednesday 22 March 2023 at 14:15.