14.83 In Time for Action, the National Council highlighted that ‘data relating to violence against women and their children in Australia is poor’. The Council noted that:
Data on services sought by, and provided to, victims is not readily available, and the, way in which information is reported is generally inconsistent and does not allow for a comprehensive understanding of family violence against women.
14.84 Similarly, there is a lack of Australian data about the intersections between family violence and employment. This lack of meaningful data collection and analysis has been identified by stakeholders, commentators and governments who have emphasised the importance of accurate and comprehensive data in informing policy initiatives in this area.
14.85 In Chapters 14–18, the ALRC makes a range of proposals, in light of which there is a need to ensure data collection mechanisms allow meaningful analysis to support policy change and to assess its impact. In particular, data could be collected in relation to:
- the NES—requests for flexible working arrangements and family-violence related inclusions in individual flexibility arrangements;
- family violence clauses in enterprise agreements;
- family violence clauses or provisions in modern awards; and
- instances in which family violence is raised in the context of unfair dismissal and general protection proceedings.
14.86 Under s 653 of the Fair Work Act, the General Manager of FWA is required to review developments in making enterprise agreements and conduct research about, amongst other things individual flexibility arrangements and requests for flexible working arrangements under the NES. In doing so, the General Manager must consider the effect of these on certain groups including, for example, women and part-time employees.
14.87 Section 653 also requires the General Manager of FWA to give the Minister a written report of the review and research as soon as practicable, and in any event, within six months after the end of the period to which it relates. The Minister must table a copy of the report within 15 sitting days.
14.88 In Chapter 16, the ALRC proposes amendment to the NES to include family violence as a basis upon which an employee may request flexible working arrangements. Chapter 17 also includes discussion about the use of individual flexibility arrangements in circumstances where an employee is experiencing family violence.
14.89 Under s 653 of the Fair Work Act, the General Manager of FWA is required to conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements. Research is also required in relation to the operation of the provisions of the NES relating to requests for flexible working arrangements, including the circumstances in which they are made, the outcome and the circumstances in which such requests are refused.
14.90 There is a lack of publicly available data about the frequency with which family violence is raised in the context of FWA proceedings as the majority of unfair dismissal and general protection matters are resolved prior to any formal hearing.
14.91 However, in facilitating the resolution of applications, FWA is privy to certain information, including the basis for the application. In some cases manifestations of family violence, such as performance or behaviour issues are raised before FWA, but family violence itself may not be.
Enterprise agreements and modern awards
14.92 As discussed in Chapter 17, there are now a range of family violence clauses included in enterprise agreements around Australia. However, there is no central publicly available source of data about the inclusion of the clauses.
14.93 In 2011, the Social Policy Research Centre at UNSW developed a framework for the ADFVC to monitor and evaluate the outcomes of the introduction of family violence clauses. The framework acknowledges that there is no one data set available to monitor the inclusion of family violence clauses in enterprise agreements or the effectiveness of complementary measures. As a result, it recommends a mixed method approach to data collection including:
- use of data already routinely collected—such as the ABS Survey of Employment Arrangements, Retirement and Superannuation;
- modification and expansion of existing instruments used for routine data collection; and
- collection and analysis of project-specific data on implementation and impact— such as workplace and union surveys.
14.94 In addition, the Department of Education, Employment and Workplace Relations (DEEWR) maintains the Workplace Agreements Database (WAD) which contains information on federal enterprise agreements that have been lodged with or approved by FWA. The WAD includes information on agreement details such as the sector and industry of the enterprise agreement, duration and employee coverage as well as data on wage increases and employment conditions in each agreement.
14.95 The ALRC is advised that:
Prior to the start of each calendar year, a review is conducted on the conditions data collected for the WAD with an aim to improve the efficiency and relevance of data collection. The recent review in 2010 included both internal and external stakeholders and achieved the capture of a range of new data on enterprise agreement content, modification of some data to enhance relevancy and usage and discontinuation of other lower priority data.
14.96 The General Manager of FWA is also required to review the developments, in Australia, in making enterprise agreements.
14.97 Under the Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (Cth), FWA is required to undertake an initial two year review of modern awards. This review is due to commence from 1 January 2012. The scope of the review is limited to FWA considering whether modern awards achieve the modern awards objectives. In addition, s 156 of the Fair Work Act also provides for review of each modern award every four years. The first review of this kind must commence as soon as practicable after 1 January 2014.
14.98 A commitment to quality data collection and evaluation is crucial to ensuring systemic change and improvement—and is an important element in an effective and ongoing national response to family violence as a workplace issue. Comprehensive, up to date and accurate data help to underpin evidence-based policy and legal responses to family violence, and inform quality education and training programs.
14.99 There are a range of existing data collection mechanisms and processes that may be utilised in order to create a mixed method approach to data collection in the employment law system.
14.100 In the ALRC’s view, where possible, FWA is the most appropriate body to collect information about family violence in an employment law context. The ALRC suggests that the Australian Government should amend s 653 of the Fair Work Act to provide that the General Manager of FWA must, in conducting the review and research required in relation to enterprise agreements, individual flexibility arrangements and the NES, consider family violence-related developments and the effect on the employment of those experiencing family violence.
14.101 The ALRC also considers that the framework developed by the Social Policy Research Centre (UNSW), as well as the use of DEEWR’s Workplace Agreements Database may be useful and appropriate mechanisms through which to collect and make available data in relation to the inclusion of family violence clauses in enterprise agreements. The ALRC welcomes stakeholder comment on the most appropriate data collection methods with respect to the inclusion of family violence clauses in enterprise agreements.
14.102 With respect to the lack of publicly available data on the basis for unfair dismissal applications, the ALRC would be interested in stakeholder comment on any ways in which FWA may be able to monitor the frequency with which family violence is raised in unfair dismissal applications, whether resolved at conciliation or not.
14.103 Finally, the ALRC is also of the view that FWA should consider data collection issues, primarily relating to the inclusion of family violence clauses in modern awards, in the course of the reviews referred to above.
Proposal 14–3 Section 653 of the Fair Work Act 2009 (Cth) should be amended to provide that Fair Work Australia must, in conducting the review and research required under that section, consider family violence-related developments and the effect of family violence on the employment of those experiencing it, in relation to:
(a) enterprise agreements;
(b) individual flexibility arrangements; and
(c) the National Employment Standards.
Question 14–2 In addition to review and research by Fair Work Australia, what is the most appropriate mechanism to capture and make publicly available information about the inclusion of family violence clauses in enterprise agreements?
Question 14–3 How should Fair Work Australia collect data in relation to the incidence and frequency with which family violence is raised in unfair dismissal and general protections matters?
Proposal 14–4 In the course of its 2012 and 2014 reviews of modern awards, Fair Work Australia should consider issues relating to data collection.
 National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 49.
 Ibid, 47.
Fair Work Act 2009 (Cth) s 653(3),(4).
 During the 2009/10 period 93 percent of termination of employment applications to Fair Work Australia (including general protections applications involving dismissal) were finalised at or prior to conciliation: Fair Work Australia, Annual Report 2009–2010, 12.
 Social Policy Research Centre, Framework to Monitor and Evaluate the Outcomes of the Introduction of Domestic Violence Clauses (2011).
 It also contains information about agreements lodged with or approved by the AIRC and Workplace Authority.
 Department of Education, Employment and Workplace Relations, Correspondence, 27 June 2011.
Fair Work Act 2009 (Cth) s 653(1)(a).
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 5, s 6.