Parliament Passes Paid Family & Domestic Violence Leave

OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

On 28 July 2022, the Albanese Government introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill). The Bill was for an Act to amend the Fair Work Act 2009 (Cth) (Fair Work Act) to provide for 10 days of paid family and domestic violence leave (FDVL) and for related purposes. The Bill passed through Parliament on 27 October 2022, following some amendments from the Senate.

The new FDVL changes will amend the current FDVL provisions contained in the National Employment Standards under the Fair Work Act.

As the FDVL provisions are a national minimum standard under the Fair Work Act, the minimum standard is applicable to employees covered under Modern Awards, those employees employed pursuant to an enterprise agreement and Award/Enterprise Agreement free employees.

The new FDVL amendments will commence from 1 February 2023 for employees employed other than by a small business, and 1 August 2023 for small business employees. A small business is defined under section 23 of the Fair Work Act and includes a business that employs fewer than 15 employees. The changes include the following 1 :

• The current FDVL provisions provide for access to 5 days of unpaid leave per 12-month period of employment, whereas the new amendments will provide full-time, part-time and casual employees with the ability to access up to 10 days of paid FDVL per 12-month period of employment. The new entitlement of up to 10 days of paid FDVL will be available in full at the start of each 12 month period of the employee’s employment and will not accumulate from year to year. The paid FDVL will be a separate entitlement to any paid personal/ carer’s leave entitlement.

• The new amendments will extend the current definition of family and domestic violence to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.

• Employees who need to access paid FDVL can be requested by the employer to provide the employer with evidence that would satisfy a reasonable person that the FDVL is being taken for the purpose of dealing with the impact of family and domestic violence. Such evidence could include arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

• Employers, other than with the consent of the employee, will not be able to use any such evidence provided by the employee for any reasons other than to satisfy the evidence requirements for FDVL. An employer may however use such evidence for other reasons if required by an Australian law or if necessary to protect the life, health or safety of the employee or another person.

• In relation to payment of the paid FDVL, full-time and part-time employees will need to be paid at their full rate of pay, worked out as if the employee had not taken the period of leave and for casual employees, they will need to be paid at their full rate of pay worked out as if the employee had worked the hours in the period for which the employee was rostered. For casual employees they will be taken to have been rostered to work hours in a period if the casual employee has accepted an offer by the employer of work for those hours.

• With respect to payslips, to ensure the safety of all employees, a new regulationmaking power will be inserted into subsection 536(2) of the Fair Work Act to enable regulations to be made prescribing information in relation to paid FDVL that must not be included in payslips.

• The new amendments will be subject to an independent review as soon as practicable after 12 months of operation and will need to consider the impacts on small business, sole traders and people experiencing family and domestic violence.

IMPLICATIONS FOR EMPLOYERS

Now that these new amendments have passed through Parliament, employers can now prepare for the changes to FDVL. Preparation should include,

• Updating policies and procedures to reflect the new paid leave provisions and ensuring that procedures are clear on how an employee can access such leave and any evidence required by the employer.

• Ensuring that payroll systems are updated to provide for paid FDVL.

• Ensure that employees are aware of their ability to access such leave arrangements and that the employer can provide support to any team members suffering from family and domestic violence.

SECURE JOBS, BETTER PAY BILL

The Albanese Government is seeking to make significant changes to the existing Australian workplace laws through their Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Secure Jobs Bill), which they introduced to Parliament on 27 October 2022. The Secure Jobs Bill seeks to amend the Fair Work Act and related legislation with a focus on the areas of wage growth, job security, gender equity and fairness.

The Secure Jobs Bill seeks to make amendments to several areas of workplace law and below are some of the areas that have the most significant impact for the Hotel sector 2 .

• Registered Organisations Commission – The amendments seek to abolish the Registered Organisations Commission.

• Better Off Overall Test (BOOT) – The Fair Work Commission (FWC) assesses enterprise agreements using the BOOT. The Secure Jobs Bill seeks to make amendments to the BOOT to try and address inflexibilities that have arisen in the implementation of the BOOT over time. The legislation would clarify that the BOOT must be applied as a global assessment rather than a line-byline comparison.

• Bargaining disputes - Giving the FWC greater powers to resolve intractable bargaining disputes about enterprise agreement terms and conditions of employment by having the ability to determine any outstanding matters by arbitration where there is no reasonable prospect of the parties reaching agreement.

• Enterprise Agreement approval – Simplifying some of the preapproval requirements that need to be met for an enterprise agreement to be approved by the FWC.

• Initiating bargaining – single enterprise agreements - Currently a majority support determination is required under the Fair Work Act by an employee bargaining representative such as a Union to initiate bargaining for a replacement enterprise agreement. This provision would be removed, and bargaining could be initiated if the proposed single enterprise agreement would replace an existing agreement that has a nominal expiry date within the past 5 years and that has a scope substantially similar to the proposed agreement.

• Supported Bargaining Stream – Amending the low-paid bargaining provisions in the Fair Work Act and renaming them the Supported Bargaining Stream. The FWC would need to consider whether it is appropriate for parties to bargain together, taking into consideration the pay and conditions in the relevant industry, whether employers have clearly identifiable common interests and whether the number of bargaining representatives would be consistent with a manageable collective bargaining process.

• Termination of enterprise agreements after nominal expiry date – Amending the Fair Work Act to clarify that the FWC can only terminate an enterprise agreement that has nominally expired on the unilateral application of a party in limited circumstances. The Bill proposes that applications to terminate an agreement under s 225 and 226 of the Fair Work Act must be heard by a Full Bench if the agreement still covers employees and the application is opposed by any of the parties covered by the agreement. Agreements will still be able to be terminated by consent.

• Sunsetting of ‘Zombie’ agreements – A proposal to automatically terminate any ‘zombie’ agreements made prior to the commencement of the Fair Work Act and during the ‘bridging period’ of 1 July to 31 December 2009. The automatic termination would occur after 12 months of the legislation commencing unless an application is made to the FWC to extend the agreement.

• Fixed term contracts – Empowering the FWC to resolve disputes in relation to an employee’s status as a fixed term employee. Limiting the use of fixed term contracts to a maximum of 2 years for the same position or to two consecutive contracts, whichever is the shorter time period.

• Flexible Working Arrangements – Empowering the FWC to resolve disputes in relation to flexible working arrangements. Where the dispute relates to an employer’s refusal to grant or respond to a request for a flexible working arrangement, the FWC would be empowered to resolve the dispute by mandatory arbitration.

• Prohibiting pay secrecy – Provide a new provision in the Fair Work Act giving employees a positive right to disclose (or not disclose) information about their own remuneration and any related terms and conditions of their employment to any other person, as well as to ask other employees about their remuneration and terms and conditions of employment.

• Prohibiting sexual harassment in connection with work – Provide a new prohibition on sexual harassment in connection with work into the Fair Work Act. The new provisions would enable a court to order a party that has contravened the new prohibition on sexual harassment in connection with work to pay a pecuniary penalty. Pecuniary penalties could also be ordered in relation to contraventions of a stop sexual harassment order or an order made by the FWC when arbitrating a sexual harassment dispute. The new provision would also make employers and principals liable if their employee or agent contravened the new prohibition on sexual harassment in connection with the employment of the employee or with the duties of the agent as an agent.

• Anti-discrimination measures – Adding three further protected attributes into the antidiscrimination framework in the Fair Work Act – breastfeeding, gender identity and intersex status.