Labor introduces first IR changes

Articles Written by Lucienne Mummé (Partner), Amy Millar (Senior Associate)

Paid family and domestic violence leave

The Labor Government has introduced to parliament legislation amending the Fair Work Act 2009 (Cth) to provide an annual, non-accumulating, entitlement to 10 days’ paid family and domestic violence (FDV) leave. This would replace the existing entitlement in the National Employment Standards to five days of unpaid FDV leave.

Under the proposed legislation, the entitlement:

  • will be available to all employees, including casual employees, from 1 February 2023 (or 1 August 2023 for small businesses);
  • will be available in full at the beginning of each 12 month period of employment;
  • will be paid at the rate the employee would have received had they not taken the leave, rather than their base rate of pay as is the case for annual leave and personal/carer’s leave;
  • will be available to casuals as paid FDV leave in respect of rostered shifts, which includes where a shift has been offered to, and accepted by, the casual employee.

The legislation also:

  • expands the definition of “family and domestic violence” to include behaviour by a current or former intimate partner or a member of the employee’s household (in addition to behaviour by a “close relative”); and
  • allows an employer, employee or union to apply to the Fair Work Commission to resolve any uncertainty about the interaction between an entitlement to paid FDV leave under an enterprise agreement and the NES entitlement, and enables the Commission to vary an enterprise agreement for consistency with the NES where appropriate.

The introduction of this legislation follows the decision of the Full Bench of the Fair Work Commission in May 2022, expressing a provisional view that modern awards should be varied to include this entitlement for full-time and part-time employees. In view of the Government’s announcement, the Commission has vacated the directions that were in place in respect of its FDV leave review.

What should employers do?

If the legislation is passed, employers should consider any interaction with existing industrial instruments and update policies and processes having regard to the new requirements for paid FDV leave.

National construction code

The Labor Government has also repealed much of the Code for the Tendering and Performance of Building Work 2016 (Code). It has described this as an “interim measure” towards meeting its pre-election commitment to abolish the Australian Building and Construction Commission and repeal the Building and Construction Industry (Improving Productivity) Act 2016 (Act) and the Code.

The repealed Code provisions include those imposing requirements on code covered entities in respect of building work (e.g. restrictions on content of enterprise agreements, prohibitions on sham contracting and collusive tendering practices, and requirements in respect of protection of freedom of association). This repeal has occurred on the basis that most of these requirements duplicate existing laws, and others have the effect of imposing additional requirements on building and construction workers compared to those in other industries. The only remaining requirement concerns the engagement of non-citizens and non-residents (which the Act requires be included in the Code). The compliance, monitoring and enforcement provisions of the Code have also been repealed.

The amendments also remove the power to grant exemptions and exclusion sanctions by ABC Commissioner Steve McBurney, and invest the power in Workplace Relations Minister, Tony Burke. The enforcement of Fair Work Act requirements in the building and construction industry will now be the role of the Fair Work Ombudsman.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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