Amanda Alford, ALRC Legal Officer, 5 December 2011, Melbourne
I would like to acknowledge the Wurundjeri 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.
Thank you for opportunity to speak. On a personal note, I was born at the Queen Victoria Hospital which once operated on this site. It is a privilege to be able to return here and speak in relation to such an important topic. I would also like to thank the Australian Domestic and Family Violence Clearinghouse (ADFVC) and URCOT and all those who have presented and engaged thus far today.
This afternoon, I will briefly outline the background to the ALRC Commonwealth Family Violence Inquiry, the process and then some of the key challenges and tensions that have arisen in the search for law reform solutions. At the outset I would like to share the sentiments of one of many of the stakeholders we consulted, that ‘workplaces are the new community’—an idea that I will come back to later.
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.
The ALRC was asked to consider legislative arrangements across the Commonwealth that affect those experiencing family violence and whether those arrangements impose barriers to providing effective support to those adversely affected by this type of violence.
This Inquiry follows the one concluded by the ALRC in conjunction with the New South Wales Law Reform Commission (the Commissions) in October 2010. Both inquiries emanate from the work of the National Council to Reduce Violence against Women and their Children. The report, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021, was released on 29 April 2009.
In the course of the Inquiry we:
- released four Issues Papers, a Discussion Paper and a Discussion Paper Summary; and
- conducted two national rounds of stakeholder consultation meeting, forums and roundtables, including 110 consultations and received over 165 submissions.
The ALRC submitted the Final Report to the Attorney-General on 30 November; however it will not be public until the Attorney-General tables it in Parliament—an obligation under the Australian Law Reform Commission Act 1996 (Cth). As result, I am not in a position to comment on the content of our final recommendations. I can, however, comment on the Inquiry process, stakeholder views and ALRC thinking.
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?
- Should the employment law system identify and respond to address family violence? If so, how?
- Ultimately, what is the best approach to reform in this area?
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’.
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’.
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. We heard numerous instances in which family violence has entered the workplace. I understand the results of the ADFVC survey will be launched later today and that it provides data which illustrates this. Essentially, family violence can have a significant effect on employees, co-workers and workplaces and, more broadly, workplace productivity and safety.
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. In 2004, it reportedly cost the corporate and business sectors over $1.5 billion through direct costs.
The 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.
What are the issues and how can the employment law system identify and respond to address family violence?
There are a range of overarching issues we considered throughout the Inquiry, including:
- the definition of family violence;
- barriers to disclosure, particularly in an employment context;
- privacy and confidentiality; and
- verification of family violence.
In addition to these overarching issues, we also considered family violence and its impact in the employment law context. The employment law landscape is one in which significant changes have occurred over last few years. The introduction of the Fair Work Act 2009 (Cth) was controversial—and the result of extensive consultation with stakeholders throughout the drafting process. The present ALRC Inquiry comes not long after the conclusion of extensive consultation and negotiation around Fair Work Act, its introduction (the application of which is still playing out), and shortly before a planned Post-Implementation Review of the Fair Work Act.
The objects of the Fair Work Act reflect, on the one hand, the need to provide a legislative framework which 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.
The need for a balanced legislative framework was the main challenge faced by the ALRC in considering what improvements could be made to the Fair Work Act to protect the safety of those experiencing family violence, while ensuring recommendations are also consistent with the objects of the Act.
The key areas the ALRC has examined in the course of the Inquiry and ultimately made recommendations with respect to include:
- workplace occupational health and safety;
- flexible working arrangements;
- the need for rights and entitlements;
- statutory protection from discrimination; and
- awareness, education, training and relevant policies.
Workplace occupational health and safety
The Work Health and Safety Bill 2011 (Cth) was introduced in July 2011 as part of a harmonisation process to introduce model OHS legislation across Australia. Mirror legislation has also been introduced in a number of other Australian jurisdictions.
Throughout the Inquiry, stakeholders expressed a divergence of views about the circumstances in which family violence may give rise to a duty of care under the Model Act—if at all.
Safe Work Australia emphasised that, while recognising family violence may ‘impact on the workplace, it is not a risk that arises from the conduct of a business or undertaking or work itself’ and is therefore ‘beyond the scope’ of the model work health and safety laws.
However, numerous stakeholders expressed the view that, in some circumstances, family violence may be an OHS issue. The ALRC considers that in some circumstances, where family violence-related incidents occur in the workplace and affect the health and safety of workers in that workplace, that PCBUs may well owe a primary duty of care. The analogy with other forms of workplace violence is a useful one. A PCBU owes a duty to ensure, so far as is reasonably practicable, the health and safety of workers and provision of a safe working environment, which encompasses the potential risk posed by internal, external or client-initiated violence. The existence of a worker’s intimate relationship does not alter that duty.
The purposes of the OHS system are to protect workers and other persons against harm to their health, safety and welfare. Accordingly, to the extent that the OHS system is achieving its purposes, this should be synonymous with the protection of workers experiencing family violence where it poses a risk to their health, safety or welfare in a work context.
Flexible working arrangements
There is a need to ensure that workplace responses to family violence are consistent, but also sufficiently flexible to allow an employee and employer the opportunity to tailor specific working arrangements to meet the needs of both parties.
(i) Family violence clauses in enterprise agreements
We have spoken this morning about the inclusion of family violence clauses in enterprise agreements. A number of stakeholders considered that the inclusion of family violence clauses in enterprise agreements is a ‘positive move to protect the safety and industrial rights of [people] who have experienced family violence, which has resulted in a negative impact on their work entitlements’. Employer groups emphasised that such clauses are and should be negotiated on a voluntary basis and that one-size does not fit all.
This suggests, perhaps, that such clauses should not be mandatory, but that they do represent a positive development and at a minimum should contain a number of basic requirements. Beyond that however, given enterprise agreements are negotiated at an individual workplace level, the inclusion of a family violence clause will necessarily be the product of agreement between the employer and employees (or employee organisations) as to the nature and content of the clause, in light of the specific circumstances of the workplace.
(ii) Individual flexibility arrangements
While individual flexibility arrangements (IFAs) may act as one mechanism through which to account for the needs of employees experiencing family violence, they may not necessarily be the most appropriate in the family violence context. However, the ALRC acknowledges the potential role IFAs may play in some circumstances where an employee is experiencing family violence and suggests the most appropriate approach may be by focusing on amending existing guidance material on negotiating IFAs to include where an employee is experiencing family violence.
The need for rights and entitlements
(i) Modern awards
The ALRC considers that the Fair Work Act is sufficiently broad to allow scope for the inclusion of family violence-related terms in modern awards.
The key Australian precedent for the recognition of family violence in awards is the Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW), amended in 2011, under which NSW public servants are entitled to five days special leave and use of other forms of leave for the purposes of responding to family violence, as well as flexible working arrangements. There are also a range of other NSW awards which have now been varied to include family violence provisions. While the NSW Crown Employees Award is a state award, the provision provides a useful guide as to the way an award may incorporate a family violence provision.
Ultimately however, the ALRC considers that, rather than proposing the inclusion of a new allowable term (which is probably unnecessary in any event), or outlining the form in which family violence-related terms may be incorporated into modern awards, it may be more appropriate to defer consideration of these issues as part of the FWA reviews of modern awards in 2012 and 2014.
(ii) The National Employment Standards
In the course of this Inquiry, two key questions arise when considering amendment to the National Employment Standards (NES)—first, why include provisions relating to family violence, as opposed to other grounds? Secondly, why in the NES, as opposed to other workplace instruments and policies?
Given the prevalence of family violence and its affect on employees, workplaces and productivity, the ALRC considers that the NES, in particular with respect to extending the right to request flexible work arrangements and provisions for family violence-related leave (whether as part of personal leave or separate new form of leave), could play an important role in responding to family violence when it becomes a workplace issue.
While 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’. This is in part because provision of such entitlements acknowledges that ‘dealing with family violence is a community rather than just an individual responsibility’. It is also important in ensuring enforceability and consistency.
The ALRC acknowledges 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 further foundation for any such changes, in order to balance the needs of employees with the economic and practical realities faced by businesses and employers.
Statutory protection from discrimination—general protections and anti-discrimination legislation
Some stakeholders suggested that as a matter of priority there needs to be statutory protection from discrimination on the basis of status as a victim/survivor of family violence. They emphasised this is particularly important where people experiencing family violence are increasingly able to access workplace entitlements such as flexible working arrangements and leave on this basis.
Some victims of family violence are subject to discrimination and adverse treatment in the workplace as a result of their experiences of family violence. It appears that current general protections provisions under the Fair Work Act offer limited protection.
The ALRC has taken the view 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. However, the question of whether FV should be included as a protected attribute under anti-discrimination legislation falls outside the TOR. Nevertheless, in the course of the Inquiry numerous stakeholders expressed support for such an inclusion and the ALRC examined possible ways in which the issue could be considered on a Commonwealth level, in particular in the course of the current consolidation of anti-discrimination law. Fellow speaker Andrea Durbach (Deputy Sex Discrimination Commissioner) is in a better position to comment further on this matter.
Awareness, education, training and relevant policies
The final issue/response I wish to briefly touch on is the need for increased awareness, education, training, and relevant policies.
Stakeholders voiced concerns about the lack of government coordination and the short-term focus of current government-funded initiatives in this area. The ALRC heard about the need for a national whole-of-government approach to education and increasing awareness in this area. This approach should be gender-neutral, coordinated, and focused on family violence and its impact in the employment context, as distinct from other forms of violence, bullying or harassment. The approach must be coordinated, adequately resourced and ongoing throughout implementation of reform in this area.
Ultimately, the ALRC is of the view that increased awareness of family violence as a workplace issue and associated education and training are vital and must form one of the foundations for reform in this area.
This is a summary of some of the key challenges and issues which arose during the Inquiry. I am happy to take questions, but I note again that I am not in a position to indicate the content of final recommendations.
- Thank you to all stakeholders for engagement, enthusiasm and passion.
- The ALRC’s recommendations will play an important part of reform in this area. The ALRC’s recommendations overall have a high implementation rate, as indicated in our Annual Reports, and there has certainly been positive Government engagement in the Inquiry.
- I also want to emphasise the importance and impact of the Inquiry more broadly. It has placed this issue on the national agenda, we have been discussing and informing stakeholders, and ultimately the report will provide an academic basis for future work.
- It is a difficult area, but we are confident we have struck the right balance. The ALRC acknowledges that the Inquiry concerns only a narrow slice of the vast range of issues raised by the prevalence of family violence, and that law alone is not a sufficient response to family violence.
If workplaces are ‘the new community’, given the prevalence and impact of family violence, then employer organisations, unions, employers, employees and all those associated have a role to play in responding to and addressing family violence. The Report will undoubtedly provide fuel for further discussion and Government action. Our hope is that all stakeholders who have given so freely of their time and expertise and who have advocated so passionately continue to engage around this issue.
 CEO Challenge, Consultation, Brisbane, 11 October 2011.
 S Murray and A Powell, Working It Out: Domestic Violence Issues in the Workplace (2008) 1, referring to J Swanberg, T Logan and C Macke, ‘Intimate Partner Violence, Employment and the Workplace. Consequences and Future Directions’ (2005) 6 Trauma, Violence and Abuse 286.
 CEO Challenge, Consultation, Brisbane, 11 October 2011.
 National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence Against Women and their Children, 2009–2021 (2009), 43; KPMG, The Cost of Violence against Women and their Children (2009), prepared for the National Council to Reduce Violence Against Women and their Children.
 See, eg, Victorian Community Council Against Violence, Family Violence is a Workplace Issue: Workplace Models to Prevent Family Violence (2004).
 National Network of Working Women’s Centres, Submission CFV 20.