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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-02-23 Daily Xml
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Fair Work (Family and Domestic Violence Leave) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:06): I move:

That this bill be now read a second time.

The Hon. K.J. MAHER: I seek leave to insert the second reading explanation and explanation of clauses in Hansard without my reading them.

Leave granted.

This bill fulfills the government's election commitment to create consistency in the state industrial relations system for family and domestic violence leave to ensure more workers can access such leave and to expand the objects of the Fair Work Act to include promoting and facilitating gender equity.

Presently, the entitlements of state system employees to family and domestic violence leave are governed by an inconsistent array of policies, procedures and industrial instruments. Public sector employees are entitled to paid leave through a determination of the Commissioner for Public Sector Employment. Local government employees are entitled to unpaid leave under their awards, which some councils supplement through paid leave negotiated through policies or enterprise agreements.

This bill will ensure consistency across the state industrial relations system by inserting a new schedule 38 to the Fair Work Act, providing a minimum standard for paid family and domestic violence leave.

The bill defines family and domestic violence by reference to the definition of domestic abuse in the Intervention Orders (Prevention of Abuse) Act 2009. The carefully considered and comprehensive language of that act recognises that family and domestic violence takes many forms, including physical injury, emotional or psychological harm, and coercive control of a person's financial, social or personal autonomy.

The bill provides that all employees—full time, part time and casual—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, loadings or separately identifiable amounts. This ensures victim survivors of domestic violence are not disadvantaged by having to choose between their financial security and accessing these leave entitlements.

This exceeds the 10 days minimum standard recently inserted into the commonwealth Fair Work Act. The government has deliberately chosen to adopt a higher standard for the state industrial relations system, reflecting the degree of responsibility state and local governments have as democratically elected bodies to combat the scourge of domestic violence.

The bill provides that these leave entitlements may be accessed for any purpose relating to the employee dealing with the impact of family and domestic violence, including but not limited to attending medical appointments, seeking legal advice, attending to legal proceedings and relocating residences. The bill provides that, where requested by an employer, the employee must provide evidence that would satisfy a reasonable person that the leave is being taken for one of these purposes. This is not intended to be a high threshold. The kinds of evidence which may satisfy this requirement include but are not limited to police documents, referrals from health practitioners and support services, court documents, letters from employee assistance programs, as well as personal letters or statutory declarations.

We do not want to see family and domestic violence leave being denied for any arbitrary or capricious reasons, and we trust that employers will approach these entitlements in the spirit that they are intended.

The bill also includes robust confidentiality requirements so that employees can have confidence that their personal information will be appropriately treated. 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 or the 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 bill also amends the objects of the Fair Work Act to include promoting and facilitating gender equity. This will make gender equity a central consideration of the South Australian Employment Tribunal wherever it is carrying out its functions under the act such as when making industrial awards.

With this bill, this government—and we hope this parliament—is making a clear statement that we will do what we can to support victim survivors of family and domestic violence in leaving these terrible circumstances. Paid family and domestic violence leave is not a silver bullet. It is not the whole solution but it is part of the solution.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Fair Work Act 1994

3—Amendment of section 3—Objects of Act

This clause inserts a new object of promoting and facilitating gender equity into the Act.

4—Insertion of section 70B

This clause inserts a new section into the Act construing a contract of employment under the Act as if it provided for family and domestic violence leave in terms of the minimum standard. The minimum standard will either be the minimum standard as set out in the inserted section (being that outlined in clause 5 of this measure or as substituted by the South Australian Employment Tribunal), or the provisions of the particular contract of employment where such provisions are more favourable to the employee.

This clause also provides that the South Australian Employment Tribunal may, upon the application of a peak body, review the minimum standard for family and domestic violence leave set out in this measure and, if satisfied of the matters specified, substitute a fresh minimum standard.

5—Insertion of Schedule 3B

This clause inserts Schedule 3B into the Act, which sets out the minimum standard for family and domestic violence leave. Clause 1 of inserted Schedule 3B defines family and domestic violence as being domestic abuse within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009. Clause 2 of inserted Schedule 3B provides that an employee is entitled to take 15 days of family and domestic violence leave, non-accruing, in each year of their employment.

Clause 3 of inserted Schedule 3B outlines the purposes for which an employee is entitled to take family and domestic violence leave, the manner in which the employee is to give notice of the leave, the fact that the employee must, at the request of the employer, provide evidence that the leave is for 1 of the purposes listed in proposed subclause (1), the information that an employer is not permitted to request from the employee and the manner in which periods of family and domestic violence leave is to be taken.

Clause 4 of inserted Schedule 3B provides that an employee is entitled to their full rate of pay for any period of family and domestic violence leave, including separately identifiable amounts such as overtime and allowances. The full rate of pay for an employee who is not a casual employee is worked out as if the employee had not taken the leave. The full rate of pay for a casual employee is worked out as if the employee had worked the hours for which the employee was rostered. A casual employee is taken to have been rostered to work hours in a period where the employee has accepted an offer to work those hours by the employer.

Clause 5 of inserted Schedule 3B requires that information obtained under the inserted Schedule in relation to an employee's experience of family and domestic violence leave is not to be disclosed, except in limited circumstances. If information is disclosed in those limited circumstances, the information so disclosed is not to be used for any other purpose.

Debate adjourned on motion of Hon. J.S. Lee.

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