ADFVC, Submission to Fair Work Act Reviewfebruary 2012

ADFVC, Submission to Fair Work Act ReviewFebruary 2012

1. Executive summary

1.1Introduction

A significant number of Australian workers experience domestic or family violence (herein referred to as ‘domestic violence’). Evidence shows that such abuse impacts on both their personal and working lives.[1]The associated impacts of domestic violence on business include staff turnover and lost productivity.

In light of evidence that demonstrates: a) the link between domestic violence and adverse employment outcomes for victims; and b) the importance of paid employment as a factor in leaving violent relationships, there is a pressing need to amend the Fair Work legislationto provide a balanced framework that willassist employers and employees to cooperatively address the impact of domestic violence in the workplace.

This submission will:

1. Address the impacts of domestic violence in the workplace in relation to the objects set out under section 3 of the Fair Work Act 2009 (Cth) (‘FW Act’);

1. Examine the extent to which the Fair Work legislation is operating as intended.

1.2Evidence

The most recent ABS Personal Safety Survey found that 15% of Australian women had experienced physical or sexual violence from a previous partner, and 2.1% from a current partner, and4.9% of Australian men had experienced violence from a previous partner and 0.9% from a current partner (since the age of 15).[2] It also found that nearly two thirds (63%) of victims of domestic violence were in paid work.[3]

Domestic violence is the leading preventable cause of death, injury and illness for Australian women under 45 years, a higher health risk for women in this age group than smoking and obesity, and can have long-term impacts on victims’ health and wellbeing.[4]

The Australian Domestic and Family Violence Clearinghouse (ADFVC), Safe at Home, Safe at Work? National Domestic Violence and the Workplace Survey (‘National Workplace Survey’)[5] found:

1. 30 % of 3,611 respondent workers had experienced some form of domestic violence over the course of their lifetime.

1. Of the workers who had experienced domestic violence, nearly half reported that it had affected their capacity to get to work, through either physical restraint, hiding/stealing keys or transportation money or refusal/failure to show up to care for children.

1. 19% of the workers who had experienced domestic violence reported that the violence had impacted on them in the workplace; abusive calls and emails and the abusive person attending the workplace were the most common form of abuse experienced.

1. The impacts of domestic violence on workers who experienced it included: feeling distracted, tired or unwell, having to take time off and being late to work.

Access Economics has estimated the total cost of lost productivity associated with domestic violence at $484 million in 2002/3, set to rise to $609 million by 2021/2.[6] This included costs associated with victim and perpetrator absenteeism, misuse of work resources by perpetrators and retraining and rehiring costs due to staff turnover.

In a 1998 review, the United States Government cited evidence that up to 52% of victims reported losing a job, at least in part, due to domestic violence.[7]Other studies demonstrate that women who are victims of domestic violence have more disrupted work histories, on average have lower personal incomes, have had to change jobs frequently and are more likely to be employed in casual and part time work than women with no experience of violence.[8]

Finally, employment is identified as a key structural support to women leaving violent relationships.[9]

1.3Areas where the operation of the Fair Work legislation could be improved

The Australian Domestic and Domestic Violence Clearinghouse (ADFVC) recommendsthat the FW Act be improved to extend a safety net of fair, relevant and enforceable minimum terms to protect workers affected by the impact of domestic violence at work.Implementing the following recommendations would mitigate the impacts of domestic violence on the workplace and therefore promote national economic prosperity and social inclusion for all Australians:

1. ANational Employment Standard (NES) entitlement to a minimum of ten days additional paid leave for victims of domestic violence to attend to matters that are not covered by existing leave provisions: for example, going to court to get a domestic violence protection order or seeking the assistance of a domestic violence support service.

1. Extending the section 65 right to request flexible working arrangements to victims of domestic violence, with no minimum length of service.
2. The inclusion of ‘victim of domestic violence’ as a protected attribute under sections 351(1) and 772(1)(f).

We will expand on these recommendations below with reference to the relevant objects provisions of the FW Act.

Our recommendations are consistent with the recommendations in the Australian Law Reform Commission’s recent report, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117, 2011).[10] In particular:

• Recommendation 16–1 which recommends that the Australian Government should consider family violence related amendments to the FW Act in the course of the 2012 post-implementation review of the FW Act.
• Recommendation 17–1 which recommends that the Australian Government should consider amending s 65 of the FW Act to provide than an employee experiencing family violence or providing care and support to another person experiencing family violence can request a change in working arrangements.
• Recommendation 17.2 which recommends that, as part of the whole-of-government strategy for phased implementation of employment-related reforms, the Australian Government should consider amending the NES with a view to including provision for additional paid family violence leave.

2.Section 3(a): providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

Section 3(b): ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders.

The ADFVC recommends that the NES be amended to provide for a new minimum statutory entitlement to 10 days paid domestic violence leave for employees experiencing domestic violence and other employees who provide care for person/s who experience domestic violence.

Where an employee exhausts their entitlement to domestic violence leave, they should be entitled to use other types of NES leave for this purpose.

A new NES entitlement to ten days paid domestic violence leave is necessary to assist victims of domestic violence to break the cycle of interrupted employment by supporting them to stay in paid work. Existing leave entitlements are inadequate because they do not provide victims with the ability to take time off to attend to issues arising from the impact of domestic violence.This may include:

1. Attending court dates, for example where the perpetrator of domestic violence has been charged with a criminal offence or where a domestic violence protection order has been applied for. In relation to certain court dates, the victim’s attendance may be mandatory and the court can issue a warrant in the event a witness fails to attend. Further, non-attendance may result in the protection order or the criminal charges against the perpetrator being dismissed. Therefore, it is imperative that victims of domestic violence have the ability to take paid leave when it is necessary to enable court attendance.

1. Attending appointments with police, domestic violence services, child/ren’s schools and/or seeking housing or financial advice. Professional and support services are likely to only open during ordinary business hours.

These types of appointments and court dates are not specifically accommodated under existing leave entitlements in the NES, such as the entitlement to sick leave.

In the event that an employee exhausts their entitlements to domestic violence leave, they should be entitled to use other types of NES leave (e.g. personal/carer’s leave) for this purpose.

Murray and Powell writing for the ADFVC on domestic violence and the workplace found that a number of Australian employer initiatives to address the issue of domestic violence and the workplace had been valuable but had relied on the commitment of one or more influential individuals within the organisation.[11] The challenge for Australia, they concluded, remained to introduce sustainable and widespread change across employment sectors.

Minimum statutory entitlements are fundamental to achieving widespread change to address the impact of domestic violence in the workplace. The NES provides a base of minimum entitlements for all national system employees. Accordingly, the inclusion of a statutory entitlement to domestic violence leave in the NES is necessary to demonstrate a clear commitment to reducing the economic impact of domestic violence and supporting victims of domestic violence to remain in the labour market.

An enterprise-based approach towards domestic violence is insufficient to address the detrimental economic impact of domestic violence on both the individual, and more broadly, on productivity. Further, policy alone is inadequate at driving widespread systemic change, as inconsistency in policy between employers leads to 'fragmentation' and fails to achieve the type of widespread change necessary to address the issue of keeping victims of domestic violence in paid work. Barriers to disclosure of the impact of domestic violence at work articulated in the National Workplace Survey reinforce the need for guaranteed and enforceable rights to protection and support at work for workers experiencing domestic violence.[12]

The ADFVC believes that this inclusion is consistent with the aims of the FWA to promote productivity, assist employees balance their work and domestic responsibilities, and protect against unfair treatment and discrimination.

The ADFVC does not support extending other leave entitlements to address the impact of domestic violence, such as personal/carer’s leave for the following reasons:

•There are actual and conceptual differences between domestic violence and having an illness or caring responsibilities: conflating leave for the purposes arising out of domestic violence with personal/carer’s leave sends the wrong message to victims and employers. For the past 40 years, domestic violence has been recognised as a crime that should be reported and dealt with openly, without fear or shame.

•Specific domestic violence leave reinforcesa workplace culture that recognises the potential impact of abusefor workers. It requires the provision of specific supportive policies and practice in relation to workers experiencing domestic violence including provision information, referral to a domestic violence service and safety planning to ensure that the employee (and co-workers) is safe at work.

•There are different evidential requirements for accessing personal/carer’s leave. Having a separate category of paid leave for domestic violence allows for differentevidentiary requirements to be included in the Fair Work Regulations, desirable for drafting reasons.

•The ADFVC estimates that over 300,000 Australian workers now have access to the protection of domestic violence clauses in their industrial instrument (state award or enterprise agreement). Conflating leave will undermine best practice, not only in Australia but also internationally.

The inclusion of a new NES entitlement to ten days paid domestic violence leave would be consistent with the desired outcomes of the Coalition of Australian Governments’ National Plan to Address Violence Against Women and Their Children 2012-22,which aim to advance gender equality by improving women’s economic participation and independence.[13]

Domestic violence leave is too important to be left to develop through the bargaining process alone, as demonstrated through the example of paid parental leave: despite several decades of bargaining, success was incremental at best and, ultimately, real change only eventuated through the recently-adopted federal legislative Paid Parental Leave scheme.

Given the costs associated with victims’ absenteeism and/or retraining and rehiring costs due to staff turnover, there is a sound economic basis for the introduction of this entitlement to combat productivity losses. Further, as noted by Dr Michael Kennedy, CEO, Mornington Peninsula Shire Council when discussing the introduction of domestic violence leave for Council staff:

More flexible arrangements does not necessarily cost you more-even if you only measure the actual cost we get it back many times over in terms of the commitment our people show. The idea that a whole lot of people will be off on endless family violence leave is just facile.[14]

3.Section 3(d): assisting employees to balance their work and family responsibilities by providing for flexible working arrangements

The ADFVC recommends that the section 65 right to request flexible working arrangements be extended to victims of domestic violence and persons providing care to a member of their household experiencing domestic violence.

There should be no minimum qualifying period that an employee needs to work in order to access this right to request.

The time period for an employer to respond to requests should be reduced from 21 to 7 days, reflecting that domestic violence is unpredictable and may necessitate changes to an employee’s working arrangements at short notice.

While the NES provides a right to request flexible working arrangements for parents and carers of children under school age (or under 18 years with a disability), the NES does not assist employees experiencing domestic violence who may require temporary or ongoing flexibility to deal with the impact of domestic violence.

Victims of domestic violence may require temporary (or ongoing) rearrangement of shifts, hours or spans for employees who need time off for court or other appointments, or simply cannot work their regular scheduled hours due to the emotional impact of the violence on their work capacity. Additionally, victims may need changes to specific duties, for example to avoid potential contact with a perpetrator in a customer facing role (or if the perpetrator is a co-worker). In some circumstances, a victim may need to be relocated or redeployed.

The ADFVC recommends that domestic violence leave should not be subject to a qualifying period before it can be accessed.A qualifying period would undermine the beneficial nature of this type of leave and potentially exclude the employees most likely to be adversely affected by domestic violence, given the link between domestic violence and interrupted employment, some victims may not have been in their employment long enough to meet a qualifying period.

The current time period of 21 days for employers to respond to a request for flexibility should be reduced to 7 days in order to accommodate the crisis needs of employees experiencing domestic violence.

4.Section 3(e): enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms

The ADFVC recommends that ‘victim of domestic violence’ is included as an additional protected attribute under sections 351(1) and 772(1)(f) of the FW Act.

The current grounds or attributes protected under sections 351(1) and 772(1)(f) of the FW Act are ineffective in protecting victims of domestic violence from workplace discrimination. A practical assessment of the utility of these provisions makes it is clear that they offer little protection for victims of domestic violence from discrimination at work, unless the impact of the domestic violence results in temporary absence from work due to illness or injury or can be connected with associated domestic or carer's responsibilities.

The following case studies collected from Queensland Working Women’s Service and Working Women’s Centre SA exemplify situations where victims of domestic violence have been sacked or bullied out of their jobs due to negative assumptions and prejudice, or in one example, as punishment for divorcing the perpetrator. All identifying information has been removed.

Mary

Mary had worked for twomonths and in that time had been promoted to Manager. Her husband had come in to the workplace one day and caused problems. After another incident at home, she rang her boss to say she would be in a bit late as she was at the police station reporting a domestic violence incident and had been delayed. He sacked her as he said she was just ‘too difficult’.

Anna

Anna had worked for her sister in law for 15 years. Anna divorced her husband following domestic violence. When she spoke about the domestic violence to her sister in law (who was also her boss) she was sacked.

Donna

Donna disclosed to her boss that she was experiencing domestic violence. Donna had been head hunted for her position but once she revealed the domestic violence she was systematically bullied out of her position.

Jessica

Jessica received a threatening call from her ex and had to pack up and leave her workplace at short notice. Her employer sacked her and claimed she’d abandoned her employment, refusing to pay her notice period, even after she explained the reason why she had left at short notice.

It is foreseeable that an employee affected by domestic violence may be able to rely on section 351(1) or section 772(1)(f) where domestic violence has impacted on their domestic or carer's responsibilities or resulted in temporary absence from work due to illness or injury, ultimately leading to the employee being terminated or adversely treated on the basis of domestic violence as a characteristic of one these attributes. However, victims who do not have family or carer's responsibilities or not are ill or injured as a result of the domestic violence have no protection under these provisions, therefore their scope is limited in addressing discrimination against victims of domestic violence in the workplace.

Whilst domestic violence disproportionately impacts on women, the Clearinghouse does not consider ‘sex’ as a potentially relevant ground for establishing a workplace discrimination claim by a female victim of domestic violence; in our opinion, domestic violence is unlikely to be held to be a characteristic of someone’s gender.