Prevalence of family and domestic violence
2.1
Family and domestic violence can take many forms, including intimidation and control, emotional, physical, sexual, financial or spiritual abuse. It is an abuse of power exerted by a partner, former partner or family member.
2.2
Although it is a broader community problem, women are significantly more likely to experience family and domestic violence than men. The subsequent social and economic impact of such violence is also disproportionately experienced by women and children. The prevalence of family and domestic violence is not easily established and may be underestimated, but available statistics are stark:
The Australian Bureau of Statistics (ABS) reports that 23 per cent of Australian women and 7.8 per cent of Australian men have experienced violence by a partner since the age of 15.
A recent Price Waterhouse Coopers study estimated that 27.5 per cent of Australian women have experienced violence or emotional abuse inflicted by a current or former partner.
An international survey looking at violence against women and cited by the University of New South Wales (UNSW) found that 34 per cent of Australian respondents had experienced violence.
Every week one Australian woman is killed by her partner, current or former. The Australian Institute of Criminology reports that 39 per cent of homicide incidents in Australia in a two-year period between 1 July 2010 and 30 June 2012 were classified as domestic homicide.
2.3
Tragic events with catastrophic outcomes which capture the nation's attention are however just the tip of the iceberg when it comes to family and domestic violence. As put by the Minister for Women, these events serve as a potent reminder of the heavy toll such violence can take on Australian families.
Interaction with work
2.4
Financial security can be a critical determinant of victims' ability to escape violent and abusive relationships. Employment improves affected workers' ability to remove themselves and their children from abusive family relationships and maintain, as far as possible, a decent standard of living.
2.5
Family and domestic violence can also interact adversely with employment, as it can affect workers' attendance and performance. Employment can complicate affected workers' circumstances when they encounter negative treatment in the workplace which is related to their experience of violence, such as denial of requested leave or flexible work arrangements. Without support at work, family and domestic violence can threaten affected workers' ability to hold down a job, in turn increasing their vulnerability and that of their children.
2.6
Commending the bill as an important step, the Law Council of Australia explained the interaction between work and family and domestic violence:
Research indicates that women who experience family violence have a more disrupted work history, are on lower personal incomes, have had to change jobs frequently and are more often employed in casual and part‑time work, compared to women with no experience of violence. What this then perpetuates, of course, is a circle of disadvantage. The implications of this are serious for victims who may be suffering financial abuse and may feel that they are unable to take time off work in order to leave an abusive relationship out of fear of losing their job. Financial hardship can bind victims, often women, to these abusive relationships.
Enshrining support for affected workers
2.7
As set out in Chapter 1, the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the bill) seeks to enshrine support for workers experiencing family and domestic leave. It would create a new workplace right to five days unpaid leave, which affected workers could access specifically to help them deal with and overcome the obstacles family and domestic violence creates.
2.8
Submissions received by the committee were unanimous in the view that workers experiencing family and domestic violence should be supported. However, there was a divergence in views on how best to achieve this. The key areas of difference are set out below.
Amount of leave
2.9
The bill would ensure a minimum five days unpaid leave entitlement for up to six million workers employed under enterprise agreements or individual arrangements who are affected by family and domestic violence. This is consistent with the new modern award entitlement inserted into all modern industry and occupation awards by the Fair Work Commission (FWC), which became operative on 1 August 2018.
2.10
The introduction of leave specifically for the purpose of dealing with family and domestic violence received overwhelming in-principle support from submitters.
2.11
Industry and employer groups largely supported the bill in its current form. The Australian Chamber of Commerce and Industry (ACCI), for example, supported passage of the bill on the basis that it would deliver a consistent minimum leave entitlement. ACCI stressed the importance of consistency for employees and employers:
[D]omestic violence does not discriminate based on someone's award agreement or non-award status. It is in this situation that we say that a universal entitlement and a common entitlement are important. This means our members can communicate policies and procedures consistently to their employees; it means payroll can be administered consistently; and, perhaps more importantly, a single standard means those experiencing domestic violence can get a pretty accurate understanding that there is a safety net available to them and how it will work.
2.12
The Australian Industry Group (Ai Group) concurred, emphasising the importance of a consistent safety net:
The close alignment between the provisions in the bill and the provisions in the award clause is very important. If the bill was to deviate from the terms of the award clause, there would obviously be a lot of confusion and uncertainty for not only employers but employees.
2.13
The National Farmers' Federation submitted that the bill strikes an appropriate balance between employee and employer needs.
2.14
The New South Wales Farmers' Association supported the bill's objective of providing a consistent entitlement for employees covered by the bill and those covered by awards, emphasising that they should be workable for small businesses:
Family and domestic violence is a significant social problem, with all parts of society having a role to play in combating the issue. The negative impacts of domestic violence transcend a victim’s personal life, affecting the individual’s well-being at work, lower productivity and increase absenteeism. While acknowledging employing businesses have a role to play as part of the solutions to assist victims of domestic violence, burden of addressing this social issue should not be shifted to businesses to bear. Varying sizes of businesses have varying capability to provide support to victims of domestic violence. As this Bill seeks to impose a new set of leave entitlement as part of the National Employment Standards, which are mandatory to all employers (regardless of size) to comply with, terms of the new domestic violence leave provision should be workable for small businesses.
2.15
The Ai Group pointed out that employers do not all have the same capacity to support employees, concluding that the leave proposed by the bill strike 'an appropriate balance':
Employers have different capacities to provide support to employees who are experiencing family and domestic violence. Many large employers have relevant policies to assist employees who are victims of family and domestic violence. Smaller employers often do not have written policies but they typically adopt a reasonable and compassionate approach when their employees suffer genuine hardships. The Bill implements an appropriate safety-net entitlement. It strikes an appropriate balance, as does the model award clause developed by the FWC.
2.16
While supporting the introduction of five days of unpaid family and domestic violence leave, some submissions called for the number of days to be increased from five to ten. These calls were led by the Australian Council of Trade Unions (ACTU), which argued that five days unpaid leave:
…manifestly fails to provide sufficient time or financial support to effectively assist employees to escape and recover from dangerous situations.
2.17
Similar arguments were put forward by other unions, such as Unions NSW:
… five days unpaid leave, does not sufficiently take into account the costs and time associated with living with and leaving violence. At a minimum, all workers must have a universal right to ten days paid domestic violence leave.
2.18
The Victorian Trades Hall Council (VTHC) emphasised the well-documented link between women's financial independence and their freedom when subjected to domestic violence. Whilst supporting the federal initiative to making family and domestic violence leave universal, VTHC described the 'limited application' proposed by the bill as 'deeply troubling'.
2.19
Noting that unions had also pursued a 10-day leave entitlement in the FWC's Family and Domestic Violence Leave Case, Ai Group pointed out that this was rejected by the independent FWC because the claim for 10 days was in fact found to be unsubstantiated:
In the case, the unions were unable to provide any credible argument for where they came up with their claim for 10 days of paid leave. The evidence in the case was that employees who are experiencing family and domestic violence and take leave, on average take 2-3 days of leave. Paid family and domestic violence leave exists in very few countries.
2.20
Ai Group added that the safety net provisions proposed by the bill build on protections already provided by the Act:
The provisions in the bill build upon the various existing entitlements and protections in the act. There are a lot of those entitlements. There are various forms of paid and unpaid leave. There are the general protections in the act, which provide very extensive protections where an employee has a workplace right—and this would constitute a workplace right once it is incorporated into the National Employment Standards. There are the unfair dismissal laws. There are the rights of employees to request flexible work arrangements for the purposes of dealing with family and domestic violence in section 65 of the act.
Paid or unpaid leave
2.21
As well as advocating for the number of days to be increased to 10, some submitters also called for the family and domestic leave entitlement to be broadened so that the leave is paid. Three key arguments for paid leave were put forward by submitters such as Rape and Domestic Violence Services Australia:
(i)
Paid FDV leave will support individuals experiencing FDV [family and domestic violence] to achieve safety;
(ii)
Paid FDV leave will support primary prevention efforts; and
(iii)
Paid FDV leave represents a cost-effective response to FDV.
2.22
As previously noted, however, the case for paid leave was not made successfully during the FWC's 2015–2018 consideration of the issue. ACCI noted that the FWC process was extremely thorough, examined a considerable volume of evidence and involved consultation with many stakeholders:
This case was a substantial, well-considered and independently-determined arbitration of the need for a domestic violence leave standard in Australia, what that standard should be and how it should operate. The commission rigorously exercised its functions—the functions this parliament has entrusted to it—and set a new standard, following 17 days of hearings, 26 witnesses and thousands of pages of carefully considered evidence. They received 68 written submissions from 27 parties. The commission drew on over 100 articles and reports referred to in submissions, and got 40 additional sources from its own internal research. So the case was extensive, rigorous and well-evidenced, and it comprehensively traversed the necessary range of considerations relating to family violence, its interaction with work and how our employment safety net should address this interaction.
2.23
The FWC was not satisfied that paid leave was necessary. The committee did not receive evidence which would challenge the basis of the FWC's decision.
Minimum standards do not preclude other forms of support
2.24
A number of submitters noted that employers often already try to support employees in difficult situations. For example, ACCI submitted:
In its preparation for the matter which came on in the Commission, the Australian Chamber became more aware of what individual employers were doing when they became aware of an employee who was in trouble. In small workplaces where relationships are much more informal and interpersonal it was clear that there were two strands of response, not always mutually exclusive, and that many employers tried to go the extra mile…
Domestic violence is a serious community issue and victims must have access to support and services. When employees confront difficult personal circumstances or distress, employers show compassion and will work with them to understand what they can do to help. This might be access to time out of the workplace, flexible working arrangements, helping them to connect to support and services or providing a safe place away from the home – sometimes this safe place might be in the workplace itself. The first sign an employee is in trouble is not always the employee seeking time from work. In many cases the workplace was somewhere that the employee could make calls and undertake searches and somewhere that the employee could store documents and items.
2.25
A submission from the Australian Banking Association (ABA) informed the committee that all major Australian banks already provide paid family and domestic violence leave. Supporting the objective of the bill to ensure that all workers covered by the Act have access to family and domestic violence leave, the ABA outlined the model applied by major banks:
10 days per year of paid leave (may be taken as whole or part days) for employees, and
5 days for employees supporting an immediate family member or a member of the employee's household, who is experiencing Domestic Violence.
2.26
The ABA added that one major Australian bank has an uncapped policy, whereby the amount of paid leave is determined on a case-by-case basis in consultation between the affected employee, their manager and workplace relations.
2.27
The Commonwealth Bank of Australia (CBA) outlined the five pillars of its official Family and Domestic Violence Strategy in a submission to the committee:
(1)
Provide a safe place to work;
(2)
Support customers in crisis;
(3)
Champion gender equality;
(4)
Promote financial independence; and
2.28
Supporting the bill as an important step, the Law Council of Australia submitted that additional measures, such as providing for leave to be paid and increasing the number of leave days, should be considered down the track.
2.29
While some large retail employers and other large businesses may already offer provisions of more days, and even paid leave, the committee heard that expanding the proposed entitlement to include paid leave across the board could impose an unmanageable cost burden on smaller businesses:
We know from our research that, if somebody is affected by domestic and family violence, they are likely to need up to 18 days leave. When we went through the Fair Work Commission process, we certainly supported the 10 days leave, and then the commission, once it had heard all of the different industries' evidence on this, came down to the five days unpaid leave. In our view, that satisfies what small business and medium-sized business could sustain at this time. If you are a large business and you are able to afford to pay somebody for 10 days leave in order for them to take that time off to do whatever it is that they need to, you obviously have a bigger workforce base and are more likely to be more profitable, whereas, when we talk about people like franchises or small businesses who might have a team of, say, five to 10 people, we know at this time that labour costs are their primary concern. Even if we have a look at what their opening rates are on Sundays, for instance, we know that small business owners are choosing to work within their businesses as opposed to having employees in there. So what they're saying to us right now is that, if they have to sub in a more expensive person in order to cover for longer than five days, it would be expensive and it would cause them problems in terms of cash flow with their business. So we say that the five days that has been identified by the Fair Work Commission is certainly sufficient for those smaller businesses.
2.30
Furthermore, the committee heard that it is erroneous to assume that unpaid leave carries no cost to the employer. As the National Retail Association explained, even where leave is unpaid employers in many industries still have to find and pay other employees to cover those days:
When you have an employee that is obviously engaged to perform a role, if they are taking unpaid leave, it means that they are out of your business for that time. What that can mean, certainly in our sector, is that they need to be replaced either by a casual worker or by a part-time worker or by somebody else to fulfil that particular role in the business for some time. I should clarify that, even though we are the National Retail Association, we represent anybody from fast food, quick service and anything that's customer service facing. So that is typically where we would see an additional cost to the business. Whilst they're not paying for the leave, they will be paying other workers who are potentially at a higher rate to fill in for those times.
2.31
While the resulting budgeting pressure may not be significant for a large employer, available data is unclear on what this may mean for smaller businesses:
We have had some discussions with our members about what they have seen in terms of an increase at this stage. We know—and it is included in our submissions—that we have spoken with one member with a workforce exceeding 2,000, and they're budgeting for an increase in cost of 0.05 per cent. So it's quite negligible in terms of what that particular business would experience, but obviously, if you're a small business and you have a small team, it could be higher. But we're yet to have any data on that.
2.32
The committee heard that small businesses have specific strengths they can bring to situations where employees may be experiencing difficult personal circumstances, and that employers with fewer financial resources at their disposal are not in a position to provide additional forms of paid leave:
[S]mall businesses have the power of pragmatism, common sense and empathy to bring to these types of situations. We think that there is a lot of strength to the approaches that small businesses will bring to the practical management of these things day to day, quite distinct from what any award says. However, the financial capacities of small businesses—particularly, as you say, those in rural and regional Australia—are, in the overwhelming proportion, very limited. Small-business people often take out of their businesses amounts that are not materially different or significantly higher than those that their employees get, and they are certainly not high-income earners, under any stretch of that definition. The idea that there would be scope to assume an additional paid leave entitlement of 10 days, in addition to already paying four weeks annual leave, annual leave loading, public holidays and, potentially, 10 days personal leave, is not a tenable one.
2.33
In this context, the committee notes that there would be nothing preventing employers who are able to do so from implementing arrangements which exceed the safety net the bill seeks to enshrine.
Issues around confidentiality
2.34
The committee also sought stakeholder views on the issue of confidentiality.
2.35
As set out in Chapter 1, the bill would require employers to maintain confidentiality when employees access family and domestic violence leave. The exceptions to this requirement would be situations where disclosure is required by law, or where disclosure is necessary in order to protect the employee's health and safety, or that of another person.
2.36
Representatives from the Victorian Hospitals Industrial Association discussed where issues around confidentiality could arise:
The things that we've had to consider in implementing a family violence provision in agreements is what confidentiality means and where the risks to confidentiality lie. The two examples in our submission were rosters and pay slips, but you could add to that list things such as time sheets. We wanted to avoid the circumstance where the fact that someone is on family violence leave is published on a roster or a time sheet or communicated broadly to other employees as being the reason for the absence. With respect to pay slips, regulation 3.46 does not require the publication of leave expressly but does require identification of the rate of pay and ordinary hours. In the context of paid leave, a difference between the ordinary-hours rate of pay and gross pay would result. In the context of family violence, one of the matters we were advised of is the risk that pay slips may be a means by which confidentiality is breached, especially if intercepted by a family member.
2.37
The Catholic Women's League of Australia also stressed the importance of confidentiality, linking it to the stigma employees in difficult personal circumstances may feel. Representatives emphasised the importance of creating workplaces where employees feel safe in disclosing sensitive personal information:
Confidentiality is so important. Part of that should be speaking with the employee and asking them who within the workplace they would like to be informed, if anyone at all, or whether it should it be limited to one person. We need a rights focus in how confidentiality is treated. We need to ask the person, 'What would you like to happen?' Confidentiality plays into that whole issue of stigma. People feel they're going to be treated or perceived in a very negative light by their colleagues or manager if they disclose. It's important for people to feel that they can safely ask for the support and leave they might need and their confidentiality will be respected.
2.38
The committee heard that the FWC had considered the question of confidentiality in detail before handing down its decision, and that there are practical considerations which employers have to develop strategies for handling. These include how applications for family and domestic violence leave are processed:
An employer will have a payroll system. There will be a need for someone to approve leave, so there need to be some processes associated with leave approval with the overlay that the employer needs to do what is practicable to keep information confidential.
2.39
Employers also have to be mindful of the need to provide a safe working environment. The committee heard that, in certain circumstances, employers' responsibility for ensuring a safe workplace will interact with employees' right to confidentiality:
There's also the very practical issue of keeping people in the workplace safe. If a violent partner is wanting access to the workplace, the employer needs to take steps that might be necessary to brief security staff, to make sure that the receptionist perhaps is aware of the risk, to look at the security on the building et cetera. There's a whole host of practical issues here. That's why the commission stopped short of making it a blanket confidentiality obligation and why ultimately AiG, ACCI and the ACTU agreed on a sensible confidentiality provision that is reflected in the bill in very similar terms.
2.40
Recognising that information relating to employees' personal circumstances could not always be kept completely confidential within an organisation, the committee sought to understand how employers who already offer domestic violence leave entitlements approach this issue. Ai Group reported that, despite unions' concerns around confidentiality, problems were not seen in practice:
We're not aware of any problems coming up in this area. We have many large members that have policies in place. I'm yet to meet a small business owner that has a formal policy in place in this area. This confidentiality issue was a focus of the case, because of the union's claim in that area, but in practice, in our experience, it hasn't been a big issue, because employers are sensible, compassionate and they wouldn't expose people to adverse disclosure of information. They would do everything that they could.
2.41
ACCI added that employers are by and large already familiar with best practice arrangements around sensitive information relating to employees:
It's not a new proposition to us that we have to deal with sensitive information regarding our employees. We have long been privy to medical information to some extent on why people are accessing leave. We may know that people have had their wages garnished. We may know other things about their interactions with the legal system that would be sensitive for them were it known more widely in the workplace. We, I think, would fairly say that it is part of the inherent professional practice of human resource administration to not share employee information of a personal or confidential nature any more widely than is needed for the type of approvals and workplace health, safety and security matters that Mr Smith [Ai Group] mentioned.
2.42
The committee noted that the FWC had stopped short of imposing a blanket confidentiality obligation due to the nuances involved, and that the confidentiality provision contained within the bill reflects terms very similar to those agreed to by ACCI, Ai Group and the ACTU.
Committee view
2.43
Family and domestic violence is a broader community problem, and must be addressed at all levels and by the whole community. The committee is strongly of the view that this timely legislation must be passed to ensure that affected workers are supported during times of extreme personal vulnerability, so that they can take time to deal with the impact of family and domestic violence secure in the knowledge that their job and financial security are protected while they do so.
2.44
While many employers already provide caring and compassionate support to workers in these difficult personal circumstances, this bill would guarantee a leave entitlement to all workers covered by the Fair Work Act. This, the government has indicated, would provide access to this important new workplace right to up to six million additional workers.
2.45
The committee notes that some submissions called for the proposed leave entitlement to be extended, and recognises the positive intentions behind those calls. However, the committee also notes that the FWC—the independent arbiter empowered under the Act to set standards—has already considered this matter and concluded that, on balance, five days unpaid leave would provide an appropriate safety net entitlement. The committee is persuaded that bringing the minimum NES standard into line with the modern award standard set by the FWC is appropriate, and agrees that the proposed measures would promote consistency for workers and employers. The committee supports the FWC's commitment to reviewing the proposed entitlement in three years' time.
2.46
The committee urges the Senate to pass this bill without delay.
2.47
The committee recommends that the Senate pass the bill.
Senator Slade Brockman
Chair