28 Apr 2017

Fierce Fight for Domestic Violence Leave

Australian employees are already protected in their employment if they are experiencing domestic violence.  This is because the Fair Work Act 2010 makes it unlawful to terminate or otherwise adversely change an employee’s working conditions due to the fact that they are experiencing domestic violence. 

Prior to such protections some employers preferred to avoid the dangers of domestic violence becoming violence in the workplace and regretfully informed their employees that the risk of harm to other employees, or the reputation of the business was too great to continue to allow a victim of domestic violence to be at work. 

This reform to protect the employment of victims was necessary, and reflects Australia’s general commitment to ending the shame and silence that surrounds domestic violence so that victims are publicly supported and better equipped to seek safety from a private terror.

Now a further reform is sought – to provide additional paid leave to employees experiencing domestic violence so that they can take necessary actions such as going to court to apply for restraining orders, seek alternative accommodation, move children to another school and/or seek counselling and other treatment.

Paid Domestic Violence Leave

In 2014 the Australian Council of Trade Unions (ACTU) proposed that the Fair Work Commission (FWC) should insert a clause into all modern awards to provide for 10 days of paid domestic violence leave.

Employees experiencing domestic violence (or who are assisting a family member who is) would be eligible for such paid leave in addition to annual and personal leave entitlements guaranteed in the National Employment Standards.  It is not proposed that the leave would accrue or be paid out upon termination.

A separate proposal by the ACTU to allow employees to request a change in working arrangements in connection with their disclosure of domestic violence has also been proposed and is being considered in a separate application.

Extensive submissions in relation to the domestic violence leave proposal were received and considered by the Commission from a wide range of organisations including a multitude of unions as well as Industry Groups. 

Arguments For and Against

Unsurprisingly, submissions made by unions avidly supported the proposal while industry groups all said it would be too expensive and complicated to administer.

Issues about how employees would evidence domestic violence and requirements surrounding privacy, mandatory reporting and confidentiality were raised by some and effective solutions to these concerns were devised by others.  The proposed clause was amended numerous times as the application progressed.

There were other interesting points raised by stakeholders, including that Australia has international obligations to provide such leave versus other submissions that this kind of leave is not provided by most or even many other countries at this stage. 

It was also noted that special leave for those experiencing domestic violence is a bargaining chip in many enterprise agreement negotiations, and having it available as a potential benefit to be traded assisted successful conclusion of many agreements. 

Perhaps the most salient point though was the fact that a significant number of working Australians are not covered by a modern award.  This means the proposed clause would not assist victims of violence working under the Western Australian industrial relations system (for example) or in managerial or professional roles throughout the country.  This failure to cover the field is unacceptable where it is widely known that domestic violence affects people of all education levels and in all socio-economic groups. 

Critics of the proposed clause correctly asserted that the only way to ensure domestic violence leave is available to all workers would be to insert the clause into the National Employment Standards rather than into awards.  That change to legislation can only be made by the Australian Parliament.

Legal Technicality Causes Delay

After over two years of hearings the ACTU’s application has unfortunately fallen into a spiral of delay and controversy.  The President of the Fair Work Commission is now caught up in the matter and trying to determine a technical legal issue that could materially change whether the proposal succeeds or not.

One of the three original FWC decision makers resigned immediately after he handed down his decision (rejecting the proposal), while the two remaining Commissioners have yet to publish their decisions.  The President of the FWC must now determine whether the final two decisions can be handed down and the issue finalised, notwithstanding that the first decision maker is no longer available.  The alternative is that the first decision is disregarded and an alternative decision maker appointed.

There are almost as many submissions on this technical legal question as there were on the question of the proposal itself.  The ferocity of debate and vigorousness of the resistance to the change demonstrates what an emotionally charged issue this is.  A final decision still seems many months away.

Some Employers Already on Board

In the mean time, many organisations have taken the proposed clause and included it in their enterprise bargaining agreements or employment contracts – no doubt in a keen effort to demarcate themselves as proactive, progressive and compassionate employers.

The model clause that can be used is now very well honed and can be adapted to allow for more or less than 10 days leave.  Special provisions are included in the draft clause to assist with identifying how an employee can evidence domestic violence, and how organisations will ensure privacy, confidentiality and safety.

Will It Happen?

Some Australians are already receiving the benefit of being able to access domestic violence leave via inclusion of the entitlement in enterprise bargaining agreements or employment contracts.  This development should assist to gather data about how many people access the leave as a percentage of employees, how it is provided and used, the bottom line financial cost and the difference it makes to victims’ lives.  This kind of evidence may assist to convince other organisations to offer the benefit and could also cause Parliament to conclude that paid domestic violence leave is a benefit that should be legislated in the National Employment Standards so that it applies across the board to all Australians. 

There is a national commitment to ending the cycle of domestic violence in Australia.  Ensuring victims aren’t discouraged from seeking assistance because they will lose precious income is arguably an important part of that.  If the experiment some organisations are helpfully conducting proves that additional leave entitlements causes more victims to seek help then the question of how to do so really only boils down to ‘who should pay?’.

If offering the benefit proves to be too financially burdensome for some or all businesses, the Australian Government may need to consider whether it could partially reimburse employers, loan money to victims or fund domestic violence leave in a similar way to paid parental leave.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our offices on Freecall 1800 609 945 or email us now.

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