The Role of the Employment Law System

The objectives of the employment law system in Australia include the provision of a balanced framework that promotes labour market engagement and economic productivity, as well as providing flexibility and a minimum safety net of terms and conditions.^[505] In light of the benefits of employment for people experiencing family violence, its prevalence and enormous social and economic costs, ensuring the employment law system appropriately identifies, responds to and addresses family violence, is central to achieving these objectives.

The employment law framework

The employment law landscape is one in which significant changes have occurred in recent years. The Fair Work Act 2009 (Cth) is Australia’s key piece of industrial legislation.^[506] The Fair Work Act provides for terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment. It regulates ‘national system’ employers and employees.^[507] From 1 January 2010, all states other than Western Australia referred their industrial relations powers to the Commonwealth, essentially creating a new national industrial relations system. Employment that is not covered under the national industrial relations system remains regulated by the relevant State industrial relations systems. However, some entitlements under the Fair Work Act extend to non-national system employees.^[508]

The Fair Work Act covers approximately 96 per cent of private sector employees.^[509] The Fair Work Act also creates a compliance and enforcement regime and establishes several bodies to administer the Act, including the Fair Work Commission (FWC), formerly Fair Work Australia, and the Fair Work Ombudsman (FWO).

In December 2011, the Australian Government announced a review of the Fair Work Act (the Fair Work Act Review),^[510] to examine and report on the extent to which the legislation is operating as intended and areas where the operation of the legislation could be improved consistent with the objects of the Act.

On 1 January 2013, provisions of the Fair Work Amendment Act 2012 (Cth) took effect, implementing some of the Fair Work Act Review recommendations.^[513] In March 2013, the Fair Work Amendment Bill 2013 (Cth) was introduced into Parliament. Significantly, the Bill extends the right to request flexible working arrangements on the basis recommended by the ALRC, an issue discussed later in this chapter.

Within this framework, in the search for an appropriate role for the employment law system in responding to family violence, the ALRC was faced with a number of difficult overarching issues. In addition to those concerning terminology, these included: barriers to disclosure of family violence; privacy and confidentiality concerns; issues associated with the verification of family violence, where necessary; and the limits of law.

Disclosure in the workplace

People experiencing family violence may consider disclosing family violence to individuals and representatives within the employment law system — such as colleagues, human resources personnel, managers/supervisors, or union representatives — for a range of reasons. These may include: ensuring that their experiences of family violence are considered in attempting to gain or retain employment; noting the impact of family violence on attendance or performance; to seek assistance or access to entitlements; or because of safety concerns.^[514] Forty-five per cent of respondents to the ADFVC survey who indicated they had experienced family violence in the previous 12 months reported that they had discussed the violence with someone at work.^[515] As a result, workplaces have the potential to play a key role in supporting and protecting the safety of people experiencing family violence.

However, these statistics also highlight that victims may be reluctant to disclose family violence. Such reluctance may spring from shame or fear of stigmatisation and that disclosure may affect job or career opportunities, as well as privacy concerns. The ADFVC has also suggested that, in some cases, employees experiencing family violence consider work to be a ‘safe haven’ away from the violence and are therefore reluctant to disclose.^[516] Importantly, employees from particular groups or communities, such as Indigenous peoples, those from culturally or linguistically diverse communities, people with disability, or members of the lesbian, gay, trans and intersex community, may face additional barriers or have different concerns preventing disclosure of family violence.^[517]

In considering the role the employment law system can, and should, play in responding to family violence, it is important to recognise that systemic issues like barriers to disclosure require responses that go beyond the limits of the law. Such responses address broader social, economic and cultural factors, an issue discussed later in this chapter. However, to the extent that changes to legislation, legal frameworks, policy and practice within the employment law system can create an environment which is responsive and assists people experiencing family violence, these are important law reform solutions.

Privacy and confidentiality

One of the key challenges in this area is ensuring that measures likely to lead to disclosure of family violence contain appropriate privacy safeguards regarding the handling of that personal information. This is particularly important given that concerns about privacy appear to be a central barrier to disclosure of family violence in the context of employment. This is an area in which the ALRC has made a number of recommendations, including that the Privacy Act 1988 (Cth) be amended to remove the employee records exemption.^[518] The ALRC has also recommended that the Office of the Australian Information Commissioner and the FWO, in consultation with unions and employer organisations, should develop or revise guidance materials with respect to privacy obligations arising in relation to the disclosure of family violence in an employment context.^[519]

Verification

In considering reform to the employment law system, while one of the key objectives must be ensuring that the needs of employees experiencing family violence are met, there is also a need to preserve the integrity of the system.

At a broad level, in order to preserve the integrity of the leave system, there is a need to ensure that there is provision for verification of claims of family violence by employees accessing family violence-related entitlements. The question that then arises is what type of verification should be required? In the Final Report, the ALRC expressed the view that there is a need to ensure that employees accessing family violence leave are subject to the same requirements to demonstrate their entitlement to the leave as other forms of leave.^[521] However, in light of the difficulties associated with disclosure of family violence, it is vital that people experiencing family violence are provided with choice as to the documentary verification provided to support a claim of family violence. Such documents may include those issued by a police officer, court, health professional, lawyer, family violence service or refuge worker, or the employee, in the form of a signed statutory declaration. For example, in Jenny’s situation, had she been entitled to access leave or other entitlements, she would have been in a position to provide verification in the form of police reports, court documents and medical certificates.

The limits of law

In examining the potential role for the employment law system in identifying and responding to family violence, the ALRC made a number of complementary recommendations in relation to the development of a whole-of-government national education campaign, guidance material, research and monitoring initiatives.^[522] The key overarching recommendation was for the development of a campaign focusing on the nature, features and dynamics of family violence, and its potential impact on employees and the workplace.

The September 2012 government announcement of the establishment of a National Centre of Excellence to Reduce Violence Against Women, tasked with leading a ‘national research agenda’ is a positive development in this area and is discussed later in this chapter.^[524] In addition, a number of stakeholders have made significant contributions to these parallel approaches to reform, both prior to and following the ALRC’s Inquiry. For example, the Domestic Violence Workplace Rights and Entitlements Project coordinated by the ADFVC has been central in promoting and progressing the adoption of family violence clauses in enterprise agreements and other workplace instruments and the development of a range of guidance material to assist employees and employers.^[525] The work of organisations like White Ribbon, which is conducting a pilot workplace accreditation project, and CEO Challenge, has also been central to efforts to raise awareness about the connection between family violence and the employment sphere and in transforming workplace culture.^[526]