Disclosure of family violence

14.17 People experiencing family violence may wish to disclose family violence to individuals and organisations within the employment law system—such as job services providers, employers or union representatives—for many reasons, including:

• to ensure their experiences of family violence are considered in attempting to gain or retain employment;
• to alert them to the impact of family violence on their attendance or performance;
• to seek assistance or access to entitlements; or
• because of safety concerns.

14.18 As a result, workplaces have the potential to play a key role in supporting and protecting the safety of victims of family violence. However, victims may be reluctant to disclose family violence.

Barriers to disclosure

14.19 In Family Violence—A National Legal Response, Issues Paper 36(2011) (Employment Law Issues Paper), the ALRC and the NSW Law Reform Commission (the Commissions) identified a range of reasons for non-disclosure of family violence:

A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence. A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships. Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it.^[18]

14.20 General barriers to disclosure of family violence include:

• difficulty in recognising their experiences as family violence;
• shame;
• fear of not being believed, of adverse consequences, or of stigma associated with family violence;
• having to repeat an account of family violence multiple times; and
• lack of opportunity to disclose family violence.

14.21 In the context of the employment law system, there are particular manifestations of these general barriers, as well as a range of additional barriers.

Barriers in the employment law context

14.22 In the Employment Law Issues Paper, the ALRC sought stakeholder comment about barriers faced by victims of family violence in disclosing family violence in the employment context.

14.23 Stakeholder responses indicated a range of barriers, including that victims may be reluctant to disclose family violence because they fear such disclosure will jeopardise their job or career, they will be stigmatised, or that their employer will not be responsive. Stakeholders also suggested that, in some cases, employees experiencing family violence consider work to be a ‘safe haven’ away from the violence and were therefore reluctant to disclose.

14.24 In particular, stakeholders suggested that employees fear that an ‘employer may lose confidence in the ability of the victim’^[19] following disclosure of family violence.

14.25 Stakeholders also emphasised that privacy concerns inhibit disclosure.^[20] For example, the Australian Services Union expressed the view that

One of the most significant barriers preventing employees experiencing family violence from disclosing family violence in employment related contexts is the lack of assuredness around privacy. Victims cannot be certain that their experience will be kept confidential and fear that should they make a disclosure of family violence, their disclosure will be discovered by others in the workplace.^[21]

14.26 Organisational culture and its impact on disclosure was also discussed in some submissions. For example, Women’s Health Victoria expressed the view that:

Disclosure may also be affected by the prevailing organisational culture within a workplace … An organisational culture in which there exists a traditional gender divide, where women are not respected, and where there is widespread sexism, may not be one in which a victim of family violence would feel comfortable disclosing … In contrast, a workplace that is respectful and supportive of women, that also sends a clear message that family violence is not tolerated, will foster employee disclosure.^[22]

14.27 In addition, employees from particular groups or communities may face additional barriers or have different concerns preventing disclosure of family violence. For example, an Indigenous victim may be reluctant to disclose family violence in an employment context where they work in an organisation with family or kin, or in a business in a small community. An employee who is a member of a same-sex couple, but who is not ‘out’ at work, may fear stigmatisation or discrimination on the basis of their sexuality, as well as their experiences of family violence.

14.28 Addressing systemic social, economic and cultural factors perpetuating family violence is a principal way to reduce barriers to disclosure.^[23] However, the ALRC also considers that the introduction of national initiatives such as those outlined below, ensuring systems identify and respond to disclosures of family violence and that those experiencing family violence are protected, will assist in addressing barriers to disclosure within the employment law system.

Impact of disclosure in certain areas and on certain professions

14.29 In the Employment Law Issues Paper, the ALRC expressed concerns about the potential impact that disclosure of family violence may have on the responsibility or liability of those to whom violence is disclosed. In particular, the ALRC suggested that union representatives, or individuals in the Northern Territory (NT) to whom mandatory reporting provisions apply under the Domestic and Family Violence Act 2007 (NT) may have concerns about the potential impact of encouraging disclosure of family violence in employment-related contexts.^[24]

Submissions and consultations

14.30 Submissions received in response to the ALRC’s question about the impact disclosure of family violence may have on the responsibility or liability of employers, union delegates or others, largely indicated there would be no additional responsibility or liability. Stakeholders emphasised that some of these concerns may be addressed by ensuring that there is clarity around the role and responsibilities of those to whom an employee has disclosed family violence.^[25]

14.31 Several stakeholders expressed opposition to the current mandatory reporting system in the NT.^[26]

14.32 Stakeholders also indicated that disclosure of family violence may also have a particular impact in certain professions. For example, the Australian Domestic Violence Clearinghouse (ADFVC) submitted that:

The New South Wales Police Service is currently considering the ramifications for its unsworn officers and employees of disclosure of domestic violence under their current code of conduct. The Clearinghouse understands, for example, that disclosure of a domestic violence assault (though not an apprehended violence order) triggers a risk assessment process. The Clearinghouse is consulting with NSW Police on this matter.^[27]

ALRC’s views

14.33 The ALRC acknowledges the need to ensure that family violence-related measures and workplace instruments and policies clearly outline the obligations and responsibilities of those to whom an employee has disclosed family violence. As reiterated throughout Chapters 14–18, workplace approaches and policies will need to be tailored to meet the needs of individual workplaces and employees within those workplaces. The impact of disclosure of family violence as a trigger for risk assessment is a matter for particular workplaces to address in their enterprise agreement, workplace policy or similar.

14.34 However, the ALRC considers that it is likely that obligations, such as employer duties of care, are already sufficiently broad to cover any responsibility arising from disclosure of family violence by an employee.

14.35 Consideration of issues arising in relation to child protection reporting and the operation and impact of mandatory reporting provisions under the Domestic and Family Violence Act 2007 (NT) is beyond the Terms of Reference for this Inquiry.^[28]