Submission to the Fair Work Act Review Panel

Fair Work Act Review Panel

Fair Work Act Review

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Submission to the Fair Work Act Review Panel

The Australian Law Reform Commission (ALRC) welcomes the opportunity to make this submission to the Fair Work Act Review Panel on the Fair Work Act 2009 (Cth).This submissiondraws heavily on theexperience and findings in the ALRC’s Inquiry into Commonwealth laws and family violence. That Inquiry (the ‘Commonwealth Family Violence Inquiry’) culminated in the production of the report, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRCReport117, 2011), including 102 recommendations for reform.

This submission is divided into sections, with paragraphs numbered in each section, to facilitate ease of reference for the Review Panel.

1.Commonwealth Family Violence Inquiry

1.1In the Commonwealth Family Violence Inquiry, the ALRC’s Terms of Reference required consideration of the treatment of family violence in Commonwealth laws, and the identification of improvements that could be made to relevant legal frameworks to protect the safety of those experiencing family violence. Specifically, the ALRC was asked to look at child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions.

1.2A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation. In the course of the Inquiry, the ALRC conducted 110 national consultations and received 165 submissions. In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of its Advisory Committees, Panels, Roundtables and the appointment by the Attorney-General of part-time Commissioners.

1.3A copy of Family Violence and Commonwealth Laws—Improving Legal Frameworks was tabled in Parliament on 7February 2012. An electronic version of the Report, the preceding Issues Paper, Discussion Paper, and associated materials including the Summary Report and media releases are available on the ALRC’s website at

1.4The ALRC refers the Review Panel to the recommendations made in the Commonwealth Family Violence Inquiry insofar as they deal with reforming the Fair Work Act—in particular chapters16 and 17 of Family Violence and Commonwealth Laws—Improving Legal Frameworks. The ALRC notes that this submission focuses on items 1(g) and 2 of the Review Panel’s Terms of Reference: that is, the differential impact of the Fair Work Act across those employees experiencing family violence and areas where the operation of the legislation could be improved consistent its objects.

1.5In summary, the ALRC’s key recommendations of relevance to the Review contained in Family Violence and Commonwealth Laws—Improving Legal Frameworks include:

Recommendation 16—1 The Australian Government should consider family violence-related amendments to the Fair Work Act 2009 (Cth) in the course of the 2012 Post-Implementation Review of the Act.

Recommendation 17—1 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending s 65 of the Fair Work Act 2009 (Cth) to provide that an employee:

(a)who is experiencing family violence, or

(b) 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.

Recommendation 17—2 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending the National Employment Standards with a view to including provision for additional paid family violence leave.

2.Family Violence in an Employment Context—Background Information and Evidence

2.1Two thirds of Australian women who report violence by a current partner are in paid employment.[1] The results of the National Domestic Violence and the Workplace Survey conducted in 2011, on behalf of the Australian Domestic and Family Violence Clearinghouse (ADFVC), emphasise the extent of the impact of family violence in an employment context. The survey found that, of those who reported experiencing family violence:

• nearly half the respondents reported that the violence affected their capacity to get to work—the major reason being physical injury or restraint; and
• in the last 12 monthsof the survey period, 19% reported that family violence continued in the workplace, with 12% indicating it occurred in the form of abusive phone calls and emails, and 11% stating that it occurred by way of the violent person attending the workplace.[2]

2.2Many people experiencing family violence face ongoing difficulties in gaining and retaining paid employment and in disclosing family violence where it may have an impact on their employment. For example, women who have experienced family violence generally have a more disrupted work history, receive lower incomes, and are often in casual and part-time employment.[3]In addition to the negative effects of family violence on employees and the positive effects of employment, family violence also generates an enormous economic and social cost, with broader implications for employers and the economy.

2.3Family violence is projected to cost the Australian economy an estimated $15.6 billion in 2021–22.[4] In 2004, it reportedly cost the corporate and business sectors over $1.5 billion through direct costs.[5] Where family violence affects employees in the workplace, or leads to their leaving employment, individual employers face costs associated with:

• absenteeism—including administration costs;
• decreased productivity;
• recruitment following staff turnover—estimated as 150% of an employee’s salary annually;[6] and
• training for new employees and loss of corporate knowledge.[7]

2.4The employment law system in Australia is premised on the need to provide a balanced framework that promotes labour market engagement, economic productivity and social inclusion. In light of the enormous social and economic costs of family violence, and the high proportion of people experiencing it who are employed, ensuring the employment law system appropriately identifies, responds to and addresses family violence, is central to achieving these aims.

3.General Recommendations for Reform

3.1In the course of the Commonwealth Family Violence Inquiry, the ALRC examined the intersections between family violence and Commonwealth employment law and recommended a range of reforms to employment-related legislative, regulatory and administrative frameworks. The ALRC made a range of recommendations for reform of the Fair Work Act, its institutions, and agreements and instruments made under the Act, to address the needs—and ultimately the safety—of employees experiencing family violence.

3.2While implementation is ultimately a matter for government, in the employment context the ALRC suggested that it would be most appropriate to implement the recommended reforms by way of a whole-of-government five-phase approach. The ALRC emphasised that none of the phases are mutually exclusive, nor must they necessarily be sequential. The ALRC suggested implementation should incorporate the following phases:

• Phase One—coordinated whole-of-government national education and awareness campaign; research and data collection; and implementation of government-focused recommendations.
• Phase Two—continued negotiation of family violence clauses in enterprise agreements and development of associated guidance material.
• Phase Three—consideration of family violence in the course of modern award reviews.
• Phase Four—consideration of family violence in the course of the Post-Implementation Review of theFair Work Act.
• Phase Five—review of the National Employment Standards (NES) with a view to making family violence-related amendments to the right to request flexible working arrangements and the inclusion of an entitlement to additional paid family violence leave.

3.3While some of the ALRC’s recommendations do not require amendment to the Fair Work Act, or they relate to modern awards and therefore do not fall within the Review Panel’s Terms of Reference, the recommendations of particular relevance to the Review relate to:

• the general protections provisions under the Fair Work Act; and
• the National Employment Standards—in particular, the right to request flexible working arrangements and paid family violence leave.

4.Consistency with the Objects of the Fair Work Act

4.1Section 3 of the Fair Work Act contains the objects of the Act and sets out the manner in which the Act is intended to achieve its specific objectives. The objects reflect, on the one hand, the need to provide a legislative framework that is flexible for businesses and promotes productivity and economic growth and, on the other, the desire to ensure the framework is fair and protects the rights of employees to a guaranteed safety net, flexible working arrangements and fairness and representation at work.

4.2Of particular importance in the context of the Commonwealth Family Violence Inquiry was the incorporation of references to, and actual entitlements based on, the concept of social inclusion. For example, the inclusion of parental leave and the right to request flexible working arrangements appear to indicate a commitment to ‘provide an opportunity for federal employees to improve the balance between their work and family life and thus support the social inclusion policy objective’.[8]

4.3In addition, the recommendations made by the ALRC are consistent with the objects of the Act in:

• providing fair and flexible workplace relations laws;
• ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES;
• assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
• the prevention of discrimination by recognising the right to be represented and protecting against unfair treatment and discrimination.

5.General Protections Provisions

5.1Some victims of family violence are subject to discrimination and adverse treatment in the workplace as a result of their experiences of family violence.Current general protections provisions under the Fair Work Act offer limited protection in such circumstances.

5.2In Family Violence and Commonwealth Laws—Improving Legal Frameworks, the ALRC stated that whether family violence should be included as a separate ground of discrimination under the Fair Work Act should be considered in the context of anti-discrimination law more generally. As the question of whether family violence should be included as a separate ground of discrimination under Commonwealth anti-discrimination laws fell outside the Terms of Reference, the ALRC recommended that the Australian Human Rights Commission (AHRC) examine the possible inclusion of a family-violence related protected attribute, in particular in light of the current consolidation of Commonwealth anti-discrimination laws.

5.3The ALRC also suggested that possible inclusion in the Fair Work Act be considered once any new ground is included in anti-discrimination legislation.For the information of the Review Panel in considering any amendment to the general protections provisions, the ALRC outlines its discussion of this issue below.

(a)Are the current provisions sufficient?

5.4Employees experiencing family violence may be ‘subject to direct and indirect adverse treatment in the workplace, as a result of their experience’ of family violence.[9] Stakeholders, such as the AHRC, submitted that ‘most commonly the adverse treatment manifests as being denied access to leave, flexible work arrangements or their employment being terminated’.[10]However, employees experiencing family violence may face difficulties in relying on the protected attributes articulated in s 351(1) of the Fair Work Act, which prohibits specific forms of ‘adverse action’ being taken for discriminatory reasons:[11]

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.[12]

5.5In many cases, it is difficult for a person experiencing family violence to prove a ‘causal nexus between the discrimination and an attribute that is currently covered’ by the Fair Work Act, for example family responsibilities, disability or sex.[13] By way of example, the AHRC noted that

an individual who is discriminated against because she or he requires time off work to attend court or to relocate to escape violence may be unable to make a claim under any ground covered by the FWA.[14]

5.6The National Network of Working Women’s Centres illustrated the limited protection afforded by the current provisions through a case study.[15]

Case Study

Anne was in an abusive relationship and subject to domestic violence. She was employed as a casual employee. After her employer became aware of the situation the organisation indicated it was prepared to relocate her providing she left the partner. If she failed to provide a written statement indicating she had left, the transfer would be withdrawn. This adverse treatment could not be addressed through current anti-discrimination measures provided for in the Fair Work Act. If domestic violence victim status were a stand-alone attribute, the law may have protected Anne.

5.7In addition, where a person experiencing family violence is able to establish a claim under the existing attributes, where the focus is moved from family violence itself to disability, Victoria Legal Aid has suggested that this may ‘compound feelings of powerlessness’.[16]

5.8Conversely, stakeholders such as ACCI expressed the view that the existing general protections provisions ‘do provide appropriate protections for employees’.[17]

(b)A new ground of discrimination?

5.9Essentially, the ALRC is of the view that it should not be necessary for people experiencing family violence to ‘engage in complex legal analysis to demonstrate discrimination’ under the existing grounds.[18] However, the general protections provisions under the Fair Work Act do not operate in isolation and are designed to complement—and are necessarily linked to—Commonwealth, state and territory anti-discrimination legislation. As a result, the ALRC expressed the view that including family violence as a ground under the Fair Work Act should be considered, following its inclusion under Commonwealth, state and territory anti-discrimination law.

5.10The ALRC notes that without amendments to anti-discrimination legislation, there are a range of difficulties associated with including family violence as a ground of discrimination under ss 351(1) and 772(1)(f) of the Fair Work Act—primarily in relation to how any such ground would be formulated, and the interpretation and operation of s351(2).

5.11There are differing views on the meaning and effect of s 351(2) in the context of proposed amendments to s351(1). Some stakeholders expressed the view that the protection does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken. In that case, in order for family violence to be included as a separate ground under s351(1) of the Fair Work Act, it would also need to be incorporated under Commonwealth, state or territory anti-discrimination laws; or s351(2) would need to be amended to remove the requirement that the action also be unlawful under anti-discrimination law.[19] The other view expressed, with some support from the Explanatory Memorandum to the Fair Work Bill 2008, is that s 351(2) covers action which is covered by federal, state or territory anti-discrimination law but is not unlawful because an exemption or defence applies under that law:

On this view, the prohibition on adverse action contained in the FWA will not apply where an action that would otherwise be unlawful under an anti-discrimination law falls within an existing exemption or defence, making it ‘not unlawful’.[20]

5.12The ALRC suggests that the meaning and effect of s 351(2) of the Fair Work Act is something the Review Panel could usefully consider.

5.13Despite these difficulties, the insertion of family violence into ss 351(1) and 772(1)(f) of the Fair Work Act as a separate ground of discrimination received widespread support from stakeholders.[21] Some submitted that the inclusion would ‘align with the objects of the Fair Work Act and would provide a significant safeguard to victims of family violence and support their capacity to remain in employment’.[22] In addition, submissions highlighted that the inclusion would be likely to provide additional compliance incentives for employers, including in light of: the Fair Work Ombudsman’s role in investigating discrimination;[23] the applicability of civil penalty provisions;[24] and the availability of injunctions to prevent adverse action or unlawful termination.[25]

6.National Employment Standards

6.1In Family Violence and Commonwealth Laws—Improving Legal Frameworks, the ALRC examined the NESand expressed the view that minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses.

6.2As noted by the Australian Chamber of Commerce and Industry (ACCI), tribunals and parliaments in Australia have a ‘long history of creating a limited number of minimum employment standards of general application’.[26] As a result, in the course of the Inquiry, two key questions arose when considering amendment to the NES:

• Why include provisions relating to family violence, as opposed to other grounds?
• Why in the NES, as opposed to other workplace instruments and policies?

6.3Given the prevalence of family violence and its effect on employees, workplaces and productivity, the ALRC considers that the NES, in particular with respect to the right to request flexible work arrangements and family violence-related leave, could play an important role in responding to family violence when it becomes a workplace issue.

6.4While important, the ADFVC argues that mechanisms other than statutory entitlements alone are inadequate, as statutory entitlements are ‘fundamental to achieving widespread change to address the impact of family violence in the workplace’.[27] This is in part because provision of such entitlements acknowledges that ‘dealing with family violence is a community rather than just an individual responsibility’.[28]

6.5However, amendment to the NES would involve a significant change to the Fair Work Act framework after already extensive consultations surrounding the introduction of the Act. In addition, there is a need to build a foundation for any such changes, in order to balance the needs of employees with the economic and practical realities faced by businesses and employers.