Approaches to Reform

In considering the most appropriate approach to reform in this area, there are three key areas of possible legislative reform: the Fair Work Act, anti-discrimination legislation and work health and safety legislation.

There are a number of aspects of the Fair Work Act that present opportunities to assist people experiencing family violence, like Jenny, including: leave and flexible working arrangements and statutory protection from discrimination. However, as discussed above, it is also necessary to recognise the limits of the law and the crucial role education, increased awareness and cultural change must play at broader societal and individual workplace levels.

Leave and flexible working arrangements

One of the key aims of the Fair Work Act is to assist employees to “balance their work and family responsibilities by providing for flexible working arrangements”.^[528] Leave and flexible working arrangements are key mechanisms in assisting people experiencing family violence to enter, re-enter or remain in paid employment. This is particularly important in light of the benefits of employment for people experiencing family violence, but the difficulties often faced by them in entering the paid workforce or retaining paid employment. In many instances, employees experiencing family violence are able to utilise existing leave and workplace policies and procedures which provide for flexible working arrangements.

The NES and family violence leave

The NES enshrine 10 statutory minimum requirements that apply to all ‘national system’employees. The NES replaced the Australian Fair Pay and Conditions Standards,^[529] and provide a minimum safety net of terms and conditions of employment encompassing areas such as working hours and arrangements, leave, and termination and redundancy pay. The NES cannot be excluded by an enterprise agreement or modern award. Under the NES, employees are entitled to access a number of categories of paid and unpaid leave, including: parental leave; annual leave; personal/carer’s leave; compassionate leave; community service leave; and long service leave.^[530]

An employee who is experiencing family violence may use a combination of leave entitlements to take time off work for purposes related to family violence. However, there are limitations on the use of particular types of leave under the NES;^[531] and where family violence occurs over a prolonged period, people experiencing family violence may quickly exhaust their leave entitlements. As a result, existing leave provisions set out in the NES may not adequately provide for the needs of these employees.

In the course of the Inquiry, the ALRC was faced with divergent stakeholder views on the issue of paid family violence leave. Almost all stakeholders agreed that people experiencing family violence should be appropriately supported in the workplace. However, industry representatives and employer groups emphasised that the introduction of additional leave must be accompanied by a ‘strong case’ for its introduction and highlighted potential cost implications.^[532] Other stakeholders emphasised the importance of minimum statutory entitlements to leave.

The provision of family violence leave under the NES is important in providing a universal and enforceable entitlement. In addition, the symbolic effect of such leave cannot be underestimated — it would build upon national developments around recognising and responding to family violence and recognise the relationship between family violence and workplaces outlined earlier in this chapter. As a result, the ALRC ultimately formed the view that the provision of a minimum statutory entitlement to paid family violence leave is necessary and appropriate. However, the ALRC tempered its recommendation by reference to a phased approach to implementation and additional suggestions with respect to data collection and economic modelling.^[533]

The ALRC’s recommendation was cast broadly, but the Final Report explored a number of options for reform of the NES to provide access to leave for family violence-related circumstances.^[534] First, the ALRC suggested amendment of s 97 of the Fair Work Act, under which personal/carer’s leave can be taken, to include circumstances arising from family violence. Secondly, the ALRC considered the introduction of either a new statutory minimum entitlement to family violence leave under the NES, or additional leave for family violence purposes as a subset of personal/carer’s leave under the NES. Rather than expressing a view on the preferable option, the ALRC concluded that the introduction of family violence leave should be accompanied by a number of basic requirements. These requirements includedthat the leave is paid, flexible and easily accessible where necessary, whilst containing sufficient safeguards to maintain the integrity of the leave system.^[535]

Family violence clauses in enterprise agreements and modern awards

In 2010, the first Australian family violence clauses were included in the enterprise agreements for the Surf Coast Shire and University of New South Wales professional staff.^[536] At the conclusion of the ALRC’s Inquiry in November 2011, approximately six enterprise agreements across Australia and a number of awards in NSW included such clauses.

The strong preference expressed by employers, employees, and their representatives was that clauses should contain clear and enforceable entitlements, but be tailored to suit the particular circumstances of the workplace and workforce. As a result, the ALRC ultimately recommended that the Australian Government support the inclusion of family violence clauses in enterprise agreements. At a minimum, the ALRC recommended such clauses should contain several basic requirements and provisions in relation to: when verification of family violence is required and the type of verification; confidentiality; reporting, roles and responsibilities; flexible work arrangements; and access to paid leave.^[538]

The clauses have subsequently been incorporated into enterprise agreements across industries including aged care, banking, education and training, electrical contracting, railways, water and local government.^[539]

In May 2012, the ACTU Congress endorsed a Work, Life, Family Policy which states that “in workplace bargaining, the ACTU strongly encourages unions to include provisions designed to protect and support employees who are employees experiencing family or domestic violence”. It outlines a number of principles for bargaining, including the provision of additional leave, access to flexible working arrangements, confidentiality, referral to services, workplace safety strategies and education and training.^[540]

While enterprise agreements covering the majority of Commonwealth agencies do not currently include specific family violence clauses, the Government has expressed support for the inclusion of such clauses,^[541] and there is some provision for leave for family violence-related purposes. For example the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) Enterprise Agreement 2012-14 provides that the Secretary may approve paid leave under a miscellaneous leave provision “in short term special/emergency situations or other exceptional personal or family circumstances not covered by the personal/carer’s leave provisions of this Agreement, including domestic violence”.^{[542] [543]}

In November 2012, the Australian Public Service Commission issued Circular 2012/3: Supporting Employees Affected by Domestic or Family Violence ⁶⁶⁰ The Circular provides background information about family violence and its impact in the workplace, encourages consideration of the issue, and outlines support and leave arrangements for employees experiencing family violence.

While these are important steps, the inclusion of family violence clauses in Commonwealth, State and Territory government agency enterprise agreements, including the basic requirements suggested by the ALRC, would be preferable and is consistent with role of governments as a model employer. At a Commonwealth level it is also consistent with a June 2012 motion proposed by Amanda Rishworth MP which received bipartisan Parliamentary support. The motion recognised the connection between family violence and employment, the “positive impact of the inclusion of domestic violence clauses in contracts of employment” and urged “all private companies and public sectors to include domestic violence clauses in their enterprise agreements to provide victims with important protections such as access to leave in addition to existing entitlements”.^[545]

In addition to enterprise agreements, there is also scope for the inclusion of family violence clauses in awards. The key Australian precedent for the recognition of family violence in awards is the Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW). The award was amended in 2011 and entitles NSW public servants to five days special leave and use of other forms of leave for the purposes of responding to family violence, as well as flexible working arrangements. A range of other NSW awards have now been varied to include family violence provisions.

At a Commonwealth level, it is likely that existing provisions of the Fair Work Act are sufficiently broad to allow the inclusion of family violence-related terms in modern awards.^[547] However, to date no Commonwealth modern awards include such clauses. The inclusion of family violence-related terms appears to be consistent with the modern awards objective of promoting social inclusion through increased workforce participation.^[548] Such inclusion would ensureemployees experiencing family violence are able to access leave and flexible working arrangements to deal with circumstances arising from family violence, which increases the likelihood of their retaining employment. As a result, the ALRC recommended that in the course of the 2012 and 2014 reviews of modern awards by the FWC, the inclusion of a model family violence term should be considered.^[549]

At the time of writing, the FWC is undertaking a review of all modern awards, based on applications to vary modern awards, as part of a range of reviews required under the Fair Work Act and associated legislation.^[550] The scope of the current review is limited to considering whether modern awards achieve the modern awards objectives and are operating effectively, without anomalies or technical problems arising from the award modernisation process. The 2012 modern award review is unlikely to revisit issues already determined during the award modernisation process unless there are cogent reasons, such as where there has been a significant change in circumstances^[551] and is therefore unlikely to consider the issue of family violence. However, the FWC has indicated that the 2014 review, also the focus of the ALRC’s recommendation, will be broader in scope than the 2012 review.^[552] This later review presents an opportunity to consider the inclusion of a model family violence term.

The right to request flexible working arrangements

Under the NES, an employee who is a parent or otherwise has responsibility for a child who is under school age, or who is under 18 and has a disability, may request a change in working arrangements to assist with the care of that child.^[553] To be eligible to request flexible working arrangements the employee must satisfy certain service requirements.^[554] Such a request may only be refused on “reasonable business grounds”.^[555] The Australian provision was based on the UK right to request provision which has been incrementally extended to apply to parents and carers of children up to the age of 16 and those with caring responsibilities for a wide range of adults requiring care, including: relatives, spouses, civil partners and other household members.^[556]

In its Final Report, the ALRC recommended that the Australian Government should consider amending the right to request provision to provide that an employee who is experiencing family violence, or who is providing care or support to another person who is experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.^[557]

In order to ensure recognition of the diversity of families and household structures, it is vital that any extension of the right to request on this basis is broadly formulated to include children or other dependants who may have been affected by family violence, as well as a range of similarly important relationships, recognising the role of extended kinship networks for Indigenous peoples as well as of neighbours and close friends “who may well be more likely to be called upon to care or support a victim of family or domestic violence than a member of the family or household”.^[558]

Significantly, the Fair Work Act Review Panel noted the work of the ALRC and recommended that, in order to increase workplace equity and

remove current inequities, section 65 should be amended to “extend the right to request flexible working arrangements to a wider range of caring and other circumstances” (author’s emphasis).^[559]

The nature of the ALRC’s Terms of Reference precluded from examining the possible extension of the right to request on grounds other than family violence. In the author’s view however, there are clearly a number of potential grounds upon which the provisions could be extended. Since the ALRC’s Inquiry, a number of other bodies and reports have recommended the extension of the right to request. For example the House of Representatives Standing Committee on Family, Community, Housing and Youth recommended in 2009 that the right to request be extended to all employees “who have recognised care responsibilities, including to those who are caring for adults with disabilities, mental illness, chronic illness or who are frail aged”.^[560] The Advisory Panel on the Economic Potential of Senior Australians recommended that the right be extended to persons aged 55 and over.^[561] In February 2012, Adam Bandt MP introduced the Fair Work Amendment (Better Work/Life Balance) Bill 2012, which would, among other things, amend the Fair Work Act by extending the right to request to all employees and remove the flexible working arrangements provisions from the NES and create a new part of the Act.^[562]

Significantly, as mentioned earlier in the chapter, in March 2013 the Fair Work Amendment Bill 2013 (Cth) was introduced. It extends the right to request flexible working arrangements to a number of classes of employees, including those experiencing family violence and those providing care or support for people experiencing family violence.^[563] If enacted, this would implement one of the ALRC’s key recommendations.^[564]

It is necessary, however, to recognise the significant limitations with the provision in its current form. Broadly, concerns centre on its procedural rather than substantive nature, the limited availability of enforcement mechanisms and the grounds for refusal. The ALRC emphasised two particular aspects of the provision that are likely to be particularly restrictive for people experiencing family violence — eligibility and the employer response period.^[565] The ALRC did not make any systemic recommendations in relation to the provision, aside from its extension. However, in the author’s view, these limitations detract from the usefulness of the provision and amendment should be considered, at least with respect to enforceability and rights of appeal to ensure consistency with other standards under the NES.^[566]

Since the ALRC’s Inquiry, a range of evidence assessing the existing right to request provisions has emerged. Lack of awareness of the provisions has emerged as a significant issue. In November 2012, the FWC released a report on the operation of the NES provisions relating to the right to request and extension of unpaid parental leave.^[567] The Report indicated that the estimated rate of awareness of the right to request provision was 66% among employers and 48% among employees.^[568] In addition, the Australian Work and Life Index (AWALI) 2012 indicated that 20.6 per cent of employees had made a request for a change to working arrangements in the past 12 months.It is unclear the proportion that relied upon the formal right to request provision in making such a request.^[569] Significantly, the survey indicated that a majority of employees are unaware of the existence of the right to request provisions.^[570]

As a result, while the ALRC recommended an extension of the right to request, its additional exposition of the limitations of the provision in its current form and suggestions and recommendations with respect to supporting education, training and awareness raising are vital in ensuring the effectiveness of the provision.

Statutory protection from discrimination

Legislation in a number of overseas jurisdictions prohibits employers from terminating an employee’s employment or otherwise discriminating against them where the employee is, or is perceived to be, a victim of family violence, or where they take time off work, for example, to testify in a criminal proceeding, seek a protection order or medical attention related to experiences of family violence.^[571]

There is currently no such protection under Australian anti­discrimination legislation. In an Australian context, by way of brief chronology, in August 2010 the Queensland Working Women’s Service first raised the potential for the inclusion of family violence as a protected attribute under Australia's anti-discrimination legislation.^[572] The ALRC considered the possibility in the course of its Inquiry, raising the issue in its Issues Paper in February 2011 as well as in its later Discussion Paper, and in November 2011 the ALRC submitted its Final Report, Family Violence and Commonwealth Laws — Improving Legal Frameworks, to the Attorney-General.

In September 2011, the Australian Government released a discussion paper seeking submissions in relation to the consolidation of Commonwealth anti-discrimination law. It noted that submissions to the consolidation had recommended that victims of family violence be protected from unlawful discrimination.^[573]

In late 2011 the ALP National Conference resolved to “ensure that the Fair Work and anti-discrimination legislation frameworks provide appropriate protection to victims of domestic violence in the workplace”.^[574] At this stage a number of academics contributed to the development of thinking around the scope for inclusion under anti-discrimination law.^[575]

In early 2012, the Australian Government tabled the ALRC’s Report containing a recommendation that the Australian Human Rights Commission (AHRC), in the context of the consolidation, should examine the possible basis upon which status as an actual or perceived victim of family violence could be included as a protected attribute under Commonwealth anti-discrimination law.^[576] The AHRC implemented the ALRC’s recommendation and made a submission to this effect to the Attorney-General’s Department as part of the consolidation process.^[577] A range of other organisations made similar submissions.^[578]

In May 2012, the ACTU Congress’ Work, Family and Life Policy expressed support for the inclusion of a new ground of discrimination under Commonwealth and State and Territory anti-discrimination legislation as well as the Fair Work Act to “better protect employees who are experiencing, have experienced, or are perceived to be experiencing family or domestic violence, against adverse action”.^[579]

There have also been several successful motions in Parliament in relation to this issue.^[580]

On 20 November 2012, the Australian Government released a draft consolidated bill, the Human Rights and Anti-Discrimination Bill 2012 (Cth). Unfortunately, however, family violence was not included as a protected attribute in the Bill. The accompanying Regulatory Impact Statement (RIS) notes that

human rights organisations and legal practitioners strongly supported the inclusion of other attributes, such as domestic violence and criminal record. Business groups opposed these on the basis they were uncertain and imposed significant new regulatory burden.^[581]

The RIS notes that the Government does not propose to implement the introduction of other new attributes, including domestic violence, as part of the consolidation project “given its largely deregulatory focus”.^[582]

In March 2013, the Australian Government indicated that aside from amendments to the Sex Discrimination Act 1984 (Cth) in relation to sexual orientation, gender identity and intersex status, the consolidation process involved a number of issues requiring “deeper consideration” and that the Attorney-General’s Department will “continue working on this project”.^[583]

The failure to include family violence appears to be a missed opportunity to consider this issue. This is particularly so given there is a clear roadmap for the inclusion of family violence as a protected attribute under Commonwealth anti-discrimination legislation in light of the contribution made in submissions to the consolidation process including by the AHRC,^[584] and more broadly by academics such as Smith and Orchiston.^[585] It is currently unclear whether the Human Rights and Anti­Discrimination Bill 2012 (Cth) will be introduced into Parliament prior to the Federal Election announced for September 2013.

If the Bill is not introduced, or if family violence is not included in the final text of the Bill, the author suggests there are a number of possible strategies for pursuing its ultimate inclusion in anti-discrimination legislation. These include for example, considering its inclusion in State and Territory anti-discrimination legislation, and encouraging an expansion of the proposed three-year review of the exceptions under the Bill to include matters such as the inclusion of additional protected attributes.^[586]

Recent developments

Beyond a requirement that the government table the ALRC’s reports in Parliament, implementation is a matter for government. However, in its Final Report the ALRC suggested it might be appropriate to implement its recommended reforms by way of a whole-of-government five-phased approach to reform.^[587]

There has been a number of developments following the ALRC’s Inquiry, some of which have extended upon the initial work done by the ADFVC and implemented several of the ALRC’s recommendations in this area. For example, as noted earlier, the Australian Government announced the establishment of a National Centre of Excellence to Reduce Violence against Women in January 2013.^[588] The Centre will be based in Sydney but is a collaborative project between the Commonwealth, States and Territories. The Centre will receive funding of $3 million a year to “develop a national research agenda to improve policy and service delivery in the prevention of violence against women across Australia”.^[589]

In addition, the ADFVC received additional funding to expand its Workplace Rights and Entitlements Project; and DEEWR implemented a number of research and data collection recommendations.^[590] Significantly, as recommended, issues relating to family violence were considered in the course of the Fair Work Act Review as well as by the AHRC and subsequently raised in the process surrounding the consolidation of anti­discrimination legislation.^[591]

Further, legislation amending the Fair Work Act and implementing some of the ALRC’s key recommendations is currently before Parliament.^[592]

There have also been interesting developments in the broader employment and anti-discrimination law and international landscape. A number of existing international conventions are relevant to the legal framework in relation to violence in the family, and acknowledge that violence against women and children is a violation of human rights.^[593] In addition however, there are important moves at an international level with respect to employment and family violence.^[594]