All changes made to the description and title of this division.

View division | Edit description

Change Division
senate vote 2022-10-26#12

Edited by mackay staff

on 2022-11-03 11:00:40


  • Bills — Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022; in Committee
  • Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 - in Committee - Emergency leave


  • <p class="speaker">Murray Watt</p>
  • <p>When we hit the hard marker, Senator Cash had just asked a couple of questions. I've got some answers to those. I'd also like to clarify some evidence I provided earlier, now that we've had an opportunity to consider some of those matters further.</p>
  • The majority voted against [amendments]( introduced by Tasmanian Senator [Jacqui Lambie]( (Jacqui Lambie Network), which means it failed.
  • ### Amendment text
  • Tasmanian Senator [Tammy Tyrrell]( (Jacqui Lambie Network) [explained the amendments](
  • > *Calling this 'emergency leave' would not require you to self-identify as having experienced domestic violence. You'd only need it to be an emergency—an unforeseen emergency at home—that would prevent you from coming to work that day.*
  • >
  • > *[...]*
  • >
  • > *You should be entitled to privacy. You should be entitled to safety. No lawmaker should make you choose between them. That's us. We shouldn't be doing what we're doing. When you ask for domestic violence leave, even in asking the question, you're explaining why you need it, and it's absolutely none of your employer's business why you need safety in that moment. It's an emergency; get out of the way. When you ask for emergency leave, on the other hand, you're saying you're experiencing an emergency, one that prevents you from attending your work for a period of time. Your boss might ask for evidence, but all you need is evidence you're experiencing an emergency. That would be an improvement, but it wouldn't take long for businesses to realise that anybody who's requesting emergency leave is requesting what used to be called domestic violence leave. It's a rose by any other name.*
  • >
  • > *So the second bit of what I'm proposing is to combine domestic violence leave with compassionate leave. That's the leave you take when there has been a death in the family. Combining the two would mean you'd be eligible so long as there's a family emergency. The grounds for eligibility would be the same: if you're eligible for what's currently called 'compassionate leave', you're eligible for emergency leave. If you're eligible for what's proposed to be called 'paid domestic violence leave', you're eligible for emergency leave. There's no change there. This is a change that makes a good thing available to more people. It does not cost a dollar more to implement. It does not restrict access to a single person. It expands access and makes it easier to access. It is a good thing.*
  • <p>To begin with, I wish to clarify one of the things I said earlier regarding an employer's ability to recoup any family and domestic violence leave paid where it becomes apparent the employee was a perpetrator and was not entitled to paid family and domestic violence leave. As I stated, employers would be able to recover these payments. However, as for other entitlements under the Fair Work Act, recovery would be for a debt owed to the employer. This is because a payment will have been made that the employee was not entitled to. So, in that situation, the employer's right to recover would be similar to other overpayments of entitlements under the act, such as for allowances, salary errors and so forth. No provisions are required in the Fair Work Act to enable this. I also wish to clarify that the regulator for Fair Work is the Fair Work Ombudsman, and civil penalties will ultimately be decided by a court. I misspoke in my answer regarding penalties for pay contraventions and referred to the Fair Work Commission; it will be the Fair Work Ombudsman.</p>
  • <p>Also, Senator Cash, earlier today, asked this question&#8212;this is essentially what I think the question was: if an employer were to call a casual employee asking what days they are available for work but does not specify the times the employee would be offered work, would the casual employee be entitled to paid family and domestic violence leave and how would the rate of payment for paid family and domestic violence leave be calculated in these circumstances? The advice I've received is that, in those circumstances, the casual employee has not been rostered to work and has neither been offered nor accepted a shift, and therefore the entitlement to paid leave would not arise in those circumstances. The amount of pay they would be entitled to would therefore be nil. However, the casual employee would be able to take family and domestic violence leave without pay if they wished to do so.</p>
  • <p>If the employer is simply testing the employee's potential availability to work, this would not be regarded as rostered hours and the employee would not be entitled to payment for the leave. If a casual employee needs to take time off to deal with the impact of family and domestic violence on a day they have not been rostered for work, the workplace right to take the leave and be absent from work to deal with the impact of domestic violence can still be accessed but the employer would not be required to pay the employee for the unrostered hours. The term 'rostered hours' is intended to take its ordinary meaning. This acknowledges that businesses have a wide range of rostering systems according to their usual practices and human resource capabilities. Most commonly, it will be a situation where the employer makes available a list or plan of shifts to be undertaken by an employee.</p>
  • <p>Section 106BA(2) further clarifies that, without limiting the ordinary meaning of 'rostered hours':</p>
  • <p class="italic">&#8230; an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours.</p>
  • <p>Offer and acceptance, as Senator Cash would be aware, is a long-established common law principle. There's no set form to establish offer and acceptance. The offer and/or acceptance can be in writing or via text message or verbally, such as over the phone or during a team meeting. Hopefully, that clarify some of the questions at least.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I very much appreciate that additional clarification. I may have some further questions. I know Senator Waters will have some questions in relation to the bill generally. I will continue to ask away. This is in relation to the rate of pay. Again, small and family business understand the current leave arrangements in the Fair Work Act, in particular as they apply to casuals with a 25 per cent loading. This decision goes beyond what the Fair Work Commission itself had recommended in three aspects which we've been discussing.</p>
  • <p>In relation to the rate of pay, these are questions that have been put to me by small and family businesses in particular&#8212;hence why I am seeking answers on <i>Hansard</i>, so they can refer to them.</p>
  • <p>If I can go to what are referred to as, say, contingent entitlements. Contingent entitlements or work related allowances are payments above the base rate of pay. Normally leave is paid at the base rate of pay under the Fair Work Act. The government has determined that in this case it will be paid at the full rate of pay. In terms of the contingent entitlements or work related allowances, payments above the base rate of pay relate to the work that the employee is participating in. For example, they are made to employees who do certain tasks, have a particular skill they use at work, use their own tools at work, work in unpleasant or hazardous conditions, incur an expense for doing their job. Then you have a look at&#8212;and I know you'd be familiar with them&#8212;common allowances, for example hot work allowances, cool room allowances, confined spaces allowances and travel allowances. The issue has now arisen that because the government has moved towards what the ACTU had put forward, as opposed to what the Fair Work Commission has stated, there is genuine confusion amongst businesses about how they should actually calculate the rate of pay.</p>
  • <p>I'm just going to take you through a few scenarios to try and seek guidance, on <i>Hansard</i>, for businesses to actually turn to, in the event that they are confronted with certain scenarios very similar to what we just went through.</p>
  • <p class="speaker">Murray Watt</p>
  • <p>I think I have an answer for you. In the interest of time, would you like me to provide the answer which may actually answer the various examples?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I would.</p>
  • <p class="speaker">Murray Watt</p>
  • <p>I know this is a bill that we all want to get through, that's all. The purpose of the paid family and domestic violence leave entitlement is to provide financial security for those experiencing family and domestic violence. The principle underlying it is that employees should not have to choose between doing things to ensure their own safety or going to work to make ends meet.</p>
  • <p>The new family and domestic violence leave payment will be paid at the full rate of pay, which is the payment an employee would have received had they not taken a period of leave. This includes any loadings, penalty rates or allowances the employee would have ordinary received had they been working. For example, the casual loading, overtime allowance, higher duties allowance or a living away from home allowance are payable if they would have applied to the shift the employee would have worked had they not taken a period of leave. You gave a number of examples including working in hot or unpleasant conditions. Unless I'm told otherwise I am going to assume that if that was an allowance that a particular employee was paid in their ordinary work time then that would be payable as part of the leave payment, should someone seek to exercise that right.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>Thank you. That does provide further guidance for business. I do appreciate that. The issue is if it is not determined at the time the shift is offered what the employee will be doing on that particular day, but, for example, they would normally work in a confined space, they would normally work in a cold space or in a hot space, but it's not an everyday occurrence, so there is still an element of, 'We may have to decide on the day.' So the shift has been offered&#8212;subject to not actually knowing what they'll do on the day&#8212;and the employee has accepted the shift, so tick, tick. However, they then have to take the paid family and domestic violence leave. The very genuine issue raised by employers is: how do I know whether or not, in determining that rate of pay, I should factor in the allowance or not? The reason being that if I get it wrong I'm now subject to a penalty.</p>
  • <p class="speaker">Murray Watt</p>
  • <p>To supplement what I said previously, for irregular payments or amounts contingent upon certain events that may or may not have happened during the employee's rostered hours, an employer may not be liable to pay an employee those amounts. It's difficult to give an absolutely categorical assurance that applies to every single circumstance, but the principle is that if an allowance is ordinarily payable if an employee is at work then they would be paid at a rate that included those allowances. If an allowance is contingent upon certain events then, depending on the regularity and other factors, an employer may not be liable. One example I can give you is that an employee may not be entitled to be paid a travel allowance in relation to a period of paid family and domestic violence leave&#8212;if the calculation of the allowance was based on the distance travelled&#8212;where the distance that would have been travelled during the period the employee took the leave cannot be ascertained. Of course, as I mentioned when we were discussing this earlier today, it is certainly the department's intention to provide advice to small businesses about how to interpret these new laws. The usual option for small businesses to seek advice from the Fair Work Ombudsman to understand their legal requirements would be available for this as well.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>That actually was my next question in relation to the travel costs, Senator Watt, and you have now answered that, thank you. I know you'll be aware of this but, just to put it on the <i>Hansard</i> record, the Fair Work Commission in their decision about the rate of pay for paid family and domestic violence leave, FDV leave, have stated:</p>
  • <p class="italic">However, we consider that it would be overly disruptive to the integrity of the safety net to establish, on an across-the-board basis, a new paid leave entitlement which operates on a radically different basis to the paid leave entitlements for which the NES currently provides.</p>
  • <p>They also stated, in paragraph 863:</p>
  • <p class="italic">We cannot identify a persuasive rationale for taking a different approach in the case of paid FDV leave only.</p>
  • <p>Again just to get it on the record: given that that was the Fair Work Commission 's opinion&#8212;and I understand the ACTU had put forward another view and the government accepted that, and that's what we're looking at today&#8212;can I just again get the government's rationale? When we asked for it at the committee hearing, the department were not able to provide that assistance. And, to be fair to them, they are not the government. What was the government's rationale in actually going further than what the Fair Work Commission had stated, in particular given the concerns that the Fair Work Commission have put on the record&#8212;'overly disruptive to the integrity of the safety net'&#8212;in terms of this part of the bill? And how did the government determine it would depart from the advice and the decision of the Fair Work Commission?</p>
  • <p class="speaker">Murray Watt</p>
  • <p>Really, it comes down to one of the underpinning policy objectives of this legislation, which is that employees should be able to take leave to deal with the impact of family and domestic violence without the loss of income that they would have otherwise experienced. That's really what it comes down to. I probably can't elaborate any further.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>No; I understand what you're saying. It then goes to the next issue, which is, given the statements that you have just made, and the need for income continuity, one of the issues that has been raised now time and time again by business is: will the government now also seek to amend all needs-based entitlements to follow that model? And that obviously then goes to, effectively, upending the entire National Employment Standards and departing from what even the Fair Work Commission have stated would be overly disruptive, when you go down this path.</p>
  • <p class="speaker">Murray Watt</p>
  • <p>We have absolutely no plans whatsoever to do that.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>Is that a full stop? Or is that a 'at this point in time'?</p>
  • <p class="speaker">Murray Watt</p>
  • <p>I have not seen anything that makes me think that there is any possibility that we would do that.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>