Recent Developments in Law Reform: The Laws of Work

 

 

Introduction

I would like to acknowledge the Ngunnawal people who are the Traditional Custodians of this Land. I would also like to pay respect to their Elders both past and present and extend that respect to other Indigenous Australians present.

It’s a pleasure to be in Canberra surrounded by APS colleagues, many of whom have also been engaged in ALRC inquiries and others who have worked in areas which involve implementation of ALRC recommendations— the input of Departmental stakeholders is crucial to the ALRC law reform process.

Law Reform and the Laws of Work

The ‘Law of Work’ is a descriptor coined by employment law experts Owens, Riley and Murray. I think it neatly encapsulates the idea that a new world of work is emerging, the idea of the standard worker (as a male breadwinner who worked full-time for life) is being challenged.

The nature of work and working arrangements and the legislative and regulatory frameworks governing work has changed significantly. So when I talk about the ‘law of work’ I’m not only talking about employment, labour or industrial relations law—I’m talking about all of these, but also other relevant areas of law such workers’ compensation law, work health and safety law and anti-discrimination law. This descriptor also brings to the fore the challenges facing these traditional concepts which raise issues like, what do we mean when we talk about ‘work’, challenges to the traditional public v private divide, and the interaction of work with family and caring responsibilities. Importantly, in the context of the ALRC’s work it also raises issues such as the impact of family violence in the workplace and on employees, as well as the challenges raised as a result of an ageing population and the need for challenges to traditional stereotypes and assumptions around ‘retirement’.

Against this backdrop, this morning I would like to draw upon the recent work of the ALRC in two inquiries: the Commonwealth Family Violence Inquiry and Age Barriers to Work Inquiry. I will provide an outline of the key employment-related issues which emerged in the course of these Inquiries and signal what the ALRC recommended. I will also highlight some things for us as government lawyers to remember.

The ALRC

Before I do, a little about the ALRC. The Australian Law Reform Commission is a federal agency operating under the Australian Law Reform Commission Act 1996 (Cth), and the Financial Management and Accountability Act 1997 (Cth).

We currently have two Full-Time Commissioners and about 15 EFT employees: we are a small but effective agency.

The ALRC’s work is defined by Terms of Reference from the Commonwealth Attorney-General. They provide the constraint within which any law reform project undertaken by the ALRC must operate, in addition to the direction given under the Australian Law Reform Commission Act 1996 (Cth).

ALRC recommendations do not automatically become law and we play no direct role in implementation, however over 89 per cent of ALRC reports have been either substantially or partially implemented—making it one of the most effective and influential agents for legal reform in Australia.

Family violence

The search for law reform solutions to a significant and multifaceted issue like family violence is a challenging one. While family violence “knows no geographical, socio-economic, age, ability, cultural or religious boundaries”,^[1] there is one common characteristic that many people who experience family violence in Australia share — their participation in paid employment.

In July 2010, the then Attorney-General of Australia, the Hon Robert McClelland MP, asked the ALRC to inquire into and report on the treatment of family violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence. The ALRC was asked to identify what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family violence.

In the course of the Inquiry, several key questions/challenges arose that underlie the ALRC’s approach in the Final Report and which reflect the issues raised by stakeholders throughout the Inquiry. The search for law reform solutions led us to answer questions like:

• Why is family violence a workplace issue?

• Why and how should the employment system identify and respond to family violence?

• Overview of the ALRC’s recommendations and discussion of relevant developments as well as some points to remember.

Why is family violence a workplace issue?

Family violence is increasingly recognised as a significant and complex issue and one which is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. Accordingly, effective measures to address family violence must operate in both the private and public spheres. This is particularly so in the context of employment, as the line between private and public—or family life and work—is increasingly unclear, ‘with the effects of one sphere positively or negatively influencing the other’.^[2]

As one stakeholder in this Inquiry commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.^[3]

• Effect on employees—many 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.

• Family violence also directly and indirectly manifests in the workplace—The results of the National Domestic Violence and the Workplace Survey conducted in 2011 on behalf of the ADFVC indicated that, of those who reported experiencing family violence, nearly half the respondents stated that the violence affected their capacity to get to work—the major reason being physical injury or restraint. In the previous 12 months, 19 per cent of respondents reported that family violence continued in the workplace.^[4] The effect on co-workers can also be significant where it results in increased workloads due to absenteeism or dealing with disruptions, such as harassing phone calls in the workplace.

• Benefits of employment for victims—employment may afford victims of family violence a measure of financial security, independence, confidence and, therefore, safety.

• Social and economic cost of family violence—family violence also generates an enormous economic and social cost, with broader implications for employers and the economy. Family violence is projected to cost the Australian economy an estimated $15.6 billion in 2021–22.^[5] In 2004, it reportedly cost the corporate and business sectors over $1.5 billion through direct costs including absenteeism, decreased productivity, and staff turnover resulting in recruitment and training costs and the loss of corporate knowledge.^[6]

Accordingly, and in the face of significant shifts in the nature and regulation of employment in Australia there is increasingly a role for the laws of work in responding to family violence.

Why and how should the employment system identify and respond to family violence?

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.^[7] 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 intersection between family violence and the workplace is most compellingly highlighted by the circumstances of those people in paid employment who experience family violence. For example, the story of Helen:

Helen is an APS 6 with a Department. Her employment with the Department was initially undermined when her abusive partner, Brian, began phoning her workplace to speak to her work colleagues about his failing relationship with Helen. When Helen was badly assaulted by Brian in front of her two children, she and the children moved into her mother’s small unit. Police charged Brian with assault, and over the following months, Helen was required on numerous occasions to take time off work to attend both the local court for the assault charges and related Apprehended Violence Order and the Family Court for parenting orders. Helen also needed to take time off work to have surgery as a result of the injuries she sustained in the assault. While the Department was initially supportive, when Helen requested further leave she was accused by colleagues of ‘not pulling her weight’. Helen eventually resigned and now has casual employment, but as a result has not been able to afford to move out of her mother’s small unit.

This example raises some of the key issues with respect to family violence as a workplace issue and in particular, in the context of APS employment. It illustrates a number of things:

• how family violence can become a workplace issue;
• the difficulties surrounding disclosure of family violence and in some circumstances, verification of family violence.
• the need for flexible working arrangements and leave for people experiencing family violence, but also how quickly existing leave entitlements may be exhausted;
• the potential role of work, health and safety law and safety planning.

It also demonstrates however, the difficult balance Departments are required to strike between supporting employees experiencing family violence, with issues such as the need to: verify family violence; ensure the safety of employees experiencing family violence and their colleagues; impose limits on leave; ensure performance management processes consider the impact of family violence where necessary etc.

Preliminary Issues

Disclosure

People experiencing family violence may consider disclosing family violence to individuals and representatives within the employment 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. 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. 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. 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.

In considering the role the laws of work 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. This means there is a need to:

• address broader social, economic and cultural factors;
• 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;
• Also a practical element, in that it is the role of employers and in the APS context, Departments to ensure their internal culture, policies and practice is sensitive to these issues.

Someone like Helen may not wish to disclose family violence, and she may not. However, if she wants or needs to we need to ensure our Departments have an internal culture, policies and practice which are sensitive to these issues.

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. In this context, a concern expressed relates to the need in certain circumstances to require verification of claims of family violence, particularly where there is provision for additional entitlements on this basis.

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 employees accessing family violence leave should be subject to the same requirements to demonstrate their entitlement to the leave as other forms of leave. 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 Helen’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 ALRC’s Recommendations and Recent Developments

The key areas the ALRC has examined in the course of the Inquiry and ultimately made recommendations with respect to include:

• leave and flexible working arrangements (the area I will focus on);
• statutory protection from discrimination;
• workplace health and safety; and
• awareness, education, training and relevant policies.

Leave and flexible working arrangements

One of the key aims of the Fair Work Act is to assist employees to ‘balance their work and family responsibilities by providing for flexible working arrangements’.^[8] Leave and flexible working arrangements are key mechanisms in assisting people experiencing family violence to enter, re-enter or remain in paid employment. This is particularly important in light of the benefits of employment for people experiencing family violence, but the difficulties often faced by them in entering the paid workforce or retaining paid employment.

Family violence clauses in enterprise agreements

In 2010, the first Australian family violence clauses were included in the enterprise agreements for the Surf Coast Shire and University of New South Wales professional staff. At the conclusion of the ALRC’s Inquiry in November 2011, approximately six enterprise agreements across Australia and a number of awards in NSW included such clauses. By November 2012, approximately one million public and private employees had access to family violence-related leave under numerous enterprise agreements, modern awards and a range of policies and directives.^[9]

The strong preference expressed by employers, employees, and their representatives was that clauses should contain clear and enforceable entitlements, but be tailored to suit the particular circumstances of the workplace and workforce. As a result, the ALRC ultimately recommended that the Australian Government support the inclusion of family violence clauses in enterprise agreements. At a minimum, the ALRC recommended such clauses should contain several basic requirements and provisions in relation to: when verification of family violence is required and the type of verification; confidentiality; reporting, roles and responsibilities; flexible work arrangements; and access to paid leave.

The clauses have subsequently been incorporated into enterprise agreements across industries including aged care, banking, education and training, electrical contracting, railways, water and local government.

While enterprise agreements covering the majority of Commonwealth agencies do not yet currently include specific family violence clauses, the Government has expressed support for the inclusion of such clauses, and there is some provision for leave for family violence-related purposes. For example the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) Enterprise Agreement 2012–14 provides that the Secretary may approve paid leave under a miscellaneous leave provision ‘in short term special/emergency situations or other exceptional personal or family circumstances not covered by the personal/carer’s leave provisions of this Agreement, including domestic violence’.^[10]

n November 2012, the Australian Public Service Commission issued Circular 2012/3: Supporting Employees Affected by Domestic or Family Violence.^{[11] The Circular provides background information about family violence and its impact in the workplace, encourages consideration of the issue, and outlines support and leave arrangements for employees experiencing family violence. In particular, it provides that in accordance with agencies’ enterprise agreements, access to personal leave entitlements should be allowed for reasons including attending medical appointments, moving into emergency housing, attending court or police, obtaining legal advice or organising children’s care arrangements.}

Similarly, in 2012 at a state level, governments in Tasmania and Queensland have issued directives and developed policies in order to provide State public sector employees experiencing family violence with access to personal or special leave for purposes relating to family violence.^[12]

These are important steps and it is promising to see Commonwealth, state and territory governments and departments taking the initiative in this area. We need to ensure this issue is considered within all our Departments. Note also that, while these are important steps, the inclusion of family violence clauses in Commonwealth, State and Territory government agency enterprise agreements, including the basic requirements suggested by the ALRC, would be preferable and is consistent with role of governments as a model employer. This may be something to consider in the course of APS bargaining next year.

The right to request flexible working arrangements

Under the NES (until recently) an employee who is a parent or otherwise has responsibility for a child who is under school age, or who is under 18 and has a disability, may request a change in working arrangements to assist with the care of that child.^{[13] To be eligible to request flexible working arrangements the employee must satisfy certain service requirements.[14] Such a request may only be refused on ‘reasonable business grounds’. The Australian provision was based on the UK right to request provision which has been incrementally extended to apply to parents and carers of children up to the age of 16 and those with caring responsibilities for a wide range of adults requiring care, including: relatives, spouses, civil partners and other household members.[15]}

On 1 July 2013 several key provisions of the Fair Work Amendment Act 2013 (Cth) took effect. This extended the right to request flexible working arrangements to a number of classes of employees, including those experiencing family violence and those providing care or support for people experiencing family violence. This reflects the ALRC’s recommendation in the Final Report.

This is an important change. Ensuring people within departments know about this right is crucial and indeed the one of the key purposes underlying the provision is to facilitate discussions around these issues. As APS employees are now entitled to request flexible working arrangements on this basis there is a need to ensure policies, procedures and practice reflect this. I note the Fair Work Ombudsman has a range of guidance material in this area.

Age Barriers to Work

The trigger for the Age Barriers to Work Inquiry is the fact that Australia’s population is ageing. It is estimated that by 2044–45, almost one in four Australians will be aged 65 years and over. This also means that the population will comprise fewer people of ‘working age’, with only 2.7 people of working age to support each Australian aged 65 years and over by 2050, in contrast to five in 2010 and 7.5 in 1970.^[16]

Expanding the workforce participation of older Australians is one strategy that fits within wider concerns about the implications of an ageing population. Developing law reform recommendations focused on older workers is a reflection of such concerns. As a result, in March 2012 the ALRC commenced an Inquiry to consider Commonwealth legislation and related legal frameworks that either directly, or indirectly, impose limitations or barriers that could discourage older persons from participating, or continuing to participate, in the workforce or other productive work. The laws to be considered include:

• superannuation law;

• family assistance, child support and social security law;

• employment law;

• insurance law;

• compensation laws; and

• any other relevant Commonwealth legislation exempt under the Age Discrimination Act 2004 (Cth).

There has been a considerable amount of activity and initiatives directed towards ageing populations—both internationally and within Australia. In the APS context, the Australian Public Service 200 Project (APS200 Project) was established to tackle barriers to a longer productive life of work in the APS.

Overview of Section

Sustaining and increasing workforce participation by mature age workers is critical to meeting the policy challenges presented by an ageing population.

How do you break down the barriers to workforce participation faced by mature age people? What are the barriers that stand in the way? What can law and legal frameworks do about it? These were the key challenges for the ALRC in this Inquiry.

Some of the key issues addressed in the employment space (many of which overlap with those considered in the context of family violence) include:

• the need for a coordinated policy response to address barriers to participation by mature age people in the Australian labour market, we recommended the development of a National Workforce Participation Plan;
• recruitment;
• flexible working arrangements;
• reviewing compulsory retirement;
• workers’ compensation; and
• the interaction between the Fair Work Act 2009 (Cth) and anti-discrimination legislation.

Flexible Working Arrangements

The ‘ability to work part-time or flexible hours has been found to be the most important facilitator, after good health, for older people to work beyond retirement age’.^[17]

This is the case broadly, but also in the APS. For example, workshops conducted through the APS200 Project indicated overwhelmingly that older workers preferred, and required, flexibility in their work which may include less working hours, ‘chunks’ of work throughout the year, and other options for being accountable for their work whilst being able to have more time for caring responsibilities.

Flexible working arrangements may allow mature age workers to prolong workforce participation, maintain workforce attachment and facilitate the participation of those whose caring responsibilities affect their ability to participate in the paid workforce. This is particularly important for mature age workers: Australian Bureau of Statistics figures indicate that the likelihood of a person providing care to a person with disability or an elderly person increases with age and that the majority of carers in Australia are aged 45 years and over.^[18]

Mature age persons have ‘diverse requirements for flexibility’:

some want part-time work; some want casual work; and some want to work for blocks of time, take leave and return to work … Others wish to scale-down and work fewer hours, allowing more time for recreation. Many find it difficult to work full-time, standard hours because of their health, caring responsibilities or other specific circumstances.^[19]

As a result, examining a range of legislative and other mechanisms for ensuring access to flexible working arrangements is central to enabling mature age workers to enter, re-enter or remain in the paid workforce.

It is also important to acknowledge initiatives like the Government commitment to ensuring the APS has 12 per cent of APS employees regularly teleworking by 2020. The APS commitment is in line with the Government’s National Digital Economy Strategy goal for telework. There are a range of other policies and Government programs.

Right to request flexible working arrangements

As I touched on with respect to family violence, on 1 July 2013 the relevant provisions of the Fair Work Amendment Act 2013 (Cth) took effect. This extended the right to request flexible working arrangements to a number of classes of employees, including mature age workers and people with caring responsibilities.

This change reflects the ALRC’s recommendation in its Final Report. The focus of the ALRC’s recommendation was on employees with caring responsibilities. Given that the largest proportion of carers are mature age people, extension of the right to request to employees with caring responsibilities would predominantly benefit mature age workers. Extension on this basis would provide mature age workers with the right to request flexible working arrangements to accommodate their caring responsibilities and address a key barrier to ongoing workforce participation. Such reform balances one of the key objects underlying the right to request—to help employees balance their work and family responsibilities by providing flexible working arrangements—with the need to enable the workforce participation of mature age workers. It may also reduce the need for mature age workers to seek casual employment to achieve flexibility, or rely solely on the goodwill of their particular employer to access flexible working arrangements. It would also provide a statutory basis for such requests.

Workers’ Compensation

Commonwealth workers’ compensation is a ‘watch this space’ area of interest to government lawyers.

The unavailability of workers’ compensation incapacity payments may, in some circumstances, act as a disincentive for mature age workers to remain in, or return to, the paid workforce. Access to incapacity payments ensures workers receive financial support and remain engaged with rehabilitation services and appropriate return to work programs. Where a worker does not receive such payments, he or she may decide to leave the workforce, or abandon attempts to return to work, to access superannuation or the Age Pension.

Each state and territory in Australia has its own workers’ compensation scheme. The Commonwealth has three schemes. Under the Commonwealth schemes, mature age workers are entitled to workers’ compensation benefits. There are no age-related restrictions on the payment of medical or related expenses or lump sum payments for permanent impairment. However, ‘retirement provisions’ impose some age-related restrictions on incapacity payments.

There are two categories of mature age workers for the purposes of Commonwealth workers’ compensation. Those injured:

• before age 63 or 64 are entitled to incapacity payments until age 65; and

• after age 63 or 64 are entitled to up to one or two years of incapacity payments, whether consecutive or not.

The ALRC did not recommend the removal of all age limitations under workers’ compensation, as to ensure the sustainability of the scheme this would require the imposition of a benefit period or amount restriction.

The ALRC recommended a three-fold approach to reform in this area, and its recommendations were echoed in the recent SRC Act and Seacare Reviews. First, the ALRC recommended that Commonwealth workers’ compensation legislation be amended to align retirement provisions with the qualifying age for the Age Pension, which will become age 67. This will address the impending age gap between cessation of incapacity payments and eligibility for the Age Pension and is particularly important for mature age workers injured before age 63 or 64.

Secondly, the ALRC recommended that the incapacity payment period under Commonwealth workers’ compensation legislation be extended. This would benefit the workers injured after age 63 or 64 who are currently entitled to up to one or two years of incapacity payments. This was echoed in the recent review of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which recommended an extension to 260 weeks (from 54 and 104 weeks).

Thirdly, the ALRC recommended that there be consistency across Commonwealth workers’ compensation legislation, in particular to address inconsistencies in the Seafarers Rehabilitation and Compensation Act 1992 (Cth) compared to the other two key pieces of Commonwealth workers’ compensation legislation.

The weight of our Inquiry and the two workers’ compensation specific reviews (of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Seacare Scheme) as well the impeding age gap between workers’ compensation and Age Pension suggest there will be reform in this area. In the meantime, the focus of workers’ compensation schemes needs to be not only on appropriately supporting and compensating workers, but also ensuring access to post-injury rehabilitation and return to work programs given access to rehabilitation services and supports increases the likelihood of mature age workers returning to work following work-related injury.

Conclusion

The search for law reform solutions reveals that, if workplaces are the new communities, given the prevalence and impact of family violence and the challenges presented by an ageing population, then we all have role to play in responding to and addressing these issues.

The ALRC’s Reports, in combination with other reports and initiatives in this area, provide an important blueprint for reform. Ultimately, the measure of our law reform success must be whether the experiences of Helen and others experiencing family violence, or mature age employees, would be different under an employment law system reformed to encompass the measures I have outlined this morning.

In the family violence context to date the answer is mixed and depends on whether Helen has access to family violence-related leave and entitlements under an enterprise agreement or modern award and whether Helen’s workplace has adopted the necessary policies, procedures and safety plans. Similarly, as our Inquiry highlighted, much remains to be done to remove barriers to workforce participation by mature age employees.

We as government lawyers must be aware of these issues and ensure they are incorporated into both our policy work at a broad level, but also within our own Departments and Agencies. Throughout the presentation I have emphasised some of the actions you can take. This includes things like ensuring:

• our departments have an internal culture that is alive to these issues;
• we have agreements, policies and practices which are responsive to these issues and that employees are provided with appropriate information and training.
• in our advisory and policy roles, to the extent possible, we emphasise the need for legislation and legal frameworks to be amended where appropriate to ensure they respond to and address issues arising in relation to family violence and mature age employees.

Ultimately, the question I’d like you to ask yourselves is: are we doing enough to assist the Helen’s experiencing family violence, or the mature age employees, in your Department?