National Employment Standards

16.36 The National Employment Standards (NES) enshrine 10 minimum statutory requirements that apply to all national system employees.^[31] Some NES have broader application, and as a result the NES will apply to most employees in Australia and any amendment would have a wide-ranging impact on entitlements.

16.37 The NES encompass areas such as working hours and arrangements, leave, and termination and redundancy pay. Relevantly for the purposes of this Inquiry, the NES set out key minimum conditions in relation to the right to request flexible working arrangements and the provision of, and access to, leave.

Background

16.38 Prior to the introduction of the Fair Work Act, the statutory set of minimum conditions for all employees under the national industrial relationship system was included in the Australian Fair Pay and Conditions Standard (AFPCS).^[32] Prior to 2005, Commonwealth law in Australia ‘had not previously sought to regulate employment conditions so directly outside the public sector’.^[33]

16.39 The Fair Work Act replaced the AFPCS with the NES, incorporating new standards in relation to redundancy pay, community service leave and requests for flexible work arrangements. In many cases, the entitlements under the AFPCS and then NES arise from a long history of test cases before the AIRC. The NES came into effect from 1 January 2010.

16.40 Prior to the introduction of the NES, the Government published an Exposure Draft, in response to which it received 129 submissions from stakeholders as well as engaging in broader consultations. The proposed NES were subsequently released on 16 June 2008. The Act retains the substance of the Exposure Draft, with some amendments.

Interaction

16.41 As outlined in the Explanatory Memorandum to the Fair Work Bill with respect to enterprise agreements and modern awards:

The NES is designed to ‘lock in’ to modern awards and enterprise agreements. It does this by including provisions that specifically allow awards and agreements to deal with specific issues. Modern awards and enterprise agreements can also ‘build on’ the NES by including terms that supplement, or are ancillary or incidental to, the NES. But, other than as expressly allowed, an award or agreement cannot be detrimental to an employee in any respect when compared to the NES.^[34]

16.42 These rules governing the interaction of the NES, enterprise agreements and modern awards are outlined in s 55 of the Fair Work Act.

16.43 The NES are an absolute legislative safety net, which cannot be excluded or overridden by a less beneficial individual contract, enterprise agreement or modern award.^[35] With respect to contracts, the Explanatory Memorandum to the Fair Work Bill explains that:

No specific rule is provided about the relationship between the NES and contracts of employment. That relationship is governed by well established principles (e.g., a term in the contract of employment that is less favourable than a statutory entitlement is not effective) and does not require additional legislative elaboration.^[36]

The roles of the NES, government and business

16.44 To provide a basis for the proposals in this chapter about access or amendment to the NES, the ALRC considers that it is appropriate to provide an outline of stakeholder perspectives—and ultimately to express a view—with respect to the role of the NES, as well the roles of government and business in addressing family violence as a workplace issue in a general sense.

The NES

16.45 The NES play a fundamental role in providing minimum statutory entitlements as a safety net for all national system employees. The Explanatory Memorandum to the Fair Work Bill states that the Government’s key objective in introducing the NES was to:

address public concern about the adequacy of the safety net under the [existing] workplace relations system by providing a safety net which is fair for employers and employees and supports productive workplaces.^[37]

16.46 Accordingly, in order to remain consistent with the regulatory purpose of the NES, any proposed amendment to the NES must be fair to both employees and employers and support a productive workplace.

Submissions and consultations

16.47 In the Employment Law Issues Paper, the ALRC focused on access to entitlements under the NES. This prompted comments from stakeholders about the role and purpose of the NES. It is consistent with the approach taken throughout this Inquiry to consider the role and purpose of the NES, particularly in light of strong stakeholder views on this issue. It also provides background to other proposals made in relation to the NES and the employment law system more broadly, particularly given the safety net function of the NES.

16.48 The ALRC has heard differing views throughout this Inquiry as to the role of minimum statutory entitlements such as the NES in addressing family violence through the employment law system. For example, the Australian Domestic and Family Violence Clearinghouse (ADFVC) emphasised that minimum statutory entitlements are ‘fundamental to achieving widespread change to address the impact of family violence in the workplace’.^[38] Stakeholders also highlighted the role of the NES in avoiding fragmentation and ensuring consistency of entitlement and in employer decision-making.^[39]

16.49 Stakeholders have also emphasised that policy or mechanisms other than minimum statutory entitlements alone are inadequate. For example, the Australian Human Rights Commission (AHRC) submitted that Fair Work Act amendments, to include domestic violence leave as an NES,

are preferable to this issue being left for parties to negotiate in collective workplace agreements. History has shown that clauses which primarily benefit women are slow to become common bargaining claims and be negotiated into workplace agreements.^[40]

16.50 The AHRC cited the example of the provision of paid parental leave in support of its argument:

As far back as 1992, the ACTU was urging unions to negotiate with employers for paid parental leave. By 2007–09, paid parental leave was only included in 12.6 per cent of collective workplace agreements although approximately half of all employees were eligible for paid parental leave through an industrial instrument. The low incidence of paid parental leave in collective agreements shows that these provisions were either a low bargaining priority for unions and were not being negotiated, or were being negotiated and refused by employers.^[41]

16.51 Other stakeholders have expressed concern about the use of the NES in this area, emphasising that ‘Industrial Tribunals and Parliaments have a long history of creating a limited number of minimum employment standards of general application’, and that there ‘must be recognition that one-size does not fit all’.^[42]

Government and business

16.52 In discussing proposals that would potentially impose an additional financial burden on employers, the ALRC considers that it is important to recognise the history of debate about the particular roles of government and business in achieving public policy objectives and outcomes. As noted by the AHRC in their submission referred to above, this debate has most recently been raised in relation to the introduction of paid parental leave.

16.53 Some of the key objects underlying the introduction of paid parental leave were the promotion of labour market engagement and attachment, the promotion of work/life balance and gender equity.^[43]

Submissions and consultations

16.54 In its submission to this Inquiry, the Australian Chamber of Commerce and Industry (ACCI) stated that ‘government should not expect business to carry the weight of their responsibilities’, but can assist individuals in other ways.^[44]

16.55 Conversely, the Redfern Legal Centre expressed the view that minimum statutory entitlements, such as paid family violence leave, may highlight and underscore acknowledgement by government that ‘dealing with family violence is a community rather than just an individual responsibility’.^[45]

ALRC’s views

16.56 The ALRC acknowledges that amendment to the NES would involve a significant change to the Fair Work Act framework, but considers that such changes are necessary to protect victims of family violence in an employment context and ultimately appropriately balance the needs of employees and employers.

16.57 The ALRC considers that minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses. Statutory entitlements also have a normative effect on the community.

16.58 The ALRC’s view is that both government and business have a role to play in addressing family violence as a workplace issue. As a result, there is a need to balance the needs of employees with the economic and practical realities faced by businesses.

16.59 The stated objects of the Fair Work Act, the inclusion of the right to request flexible working arrangements, and the entitlement to a variety of forms of leave under the NES, all provide explicit recognition of the need for employees to balance their work with their personal lives and commitments, and the role of employers in allowing them to do so.

16.60 As outlined in detail in earlier chapters, family violence has enormous economic costs and may affect the productivity of individual employees and workplaces. While some of the ALRC’s proposals may impose some additional cost on employers, in addressing family violence, they may also go some way to enhancing productivity in workplaces.

16.61 Given the prevalence and impact of family violence on employees, workplaces and productivity, the ALRC considers that the introduction of a statutory minimum entitlement to request flexible working arrangements and leave in circumstances related to family violence is necessary. Accordingly, the ALRC makes a range of proposals in relation to these below.

Flexible working arrangements

16.62 Under the NES, an employee who satisfies the eligibility requirements—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 that his or her employer change the employee’s working arrangements to assist with the care of the child.^[46]

16.63 In order to be eligible to request flexible work arrangements, the employee must have 12 months continuous service, or for a casual employee be a long-term casual employee with a reasonable expectation of continuing employment on a regular and systemic basis. ^[47]

16.64 An employer must respond to any request by an employee in writing within 21 days and, if refusing the request, must give reasons for doing so. ^[48]

16.65 Section 65(5) of the Fair Work Act provides that such a request may only be refused on ‘reasonable business grounds’.^[49] The Act does not identify what may, or may not, comprise ‘reasonable business grounds’. However, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

The reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made. Reasonable business grounds may include, for example:

• The effect on the workplace and the employer’s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
• The inability to organise work among existing staff; or
• The inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee’s request.

It is envisaged that FWA will provide guidance on this issue.^[50]

16.66 There has been no case law considering the interpretation of ‘reasonable business grounds’ since the introduction of the provision. However, there has been significant commentary regarding the meaning of the phrase, much of it critical of the lack of legislative guidance as to what might constitute such grounds.^[51]

16.67 In the Family Provisions Test Case, decided prior to the introduction of the provision, the AIRC formulated an entitlement similar to the right to request flexible working arrangements.^[52] The AIRC suggested that, where refusal could only be on ‘reasonable grounds related to the effect on the workplace or the employer’s business’ such grounds may include: cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service’.^[53]

16.68 In the Employment Law Issues Paper, the ALRC considered whether experiencing family violence should be included as a basis upon which an employee should be entitled to request flexible working arrangements under the NES.^[54] The ALRC noted that some overseas jurisdictions have enacted legislation that entitles victims of family violence to reduce or reorganise their working hours, change workplaces and make other flexible working arrangements.^[55]

16.69 In the context of family violence, a victim of family violence may need to access flexible working arrangements in the form of, for example, changes to working times and patterns, changes to specific duties, redeployment or relocation. A change to arrangements may be required to ensure the safety of the victim, for example through changes to working time or location or work contact details; to allow the victim to attend appointments or make arrangements outside of work; or to care for children also affected by family violence.

16.70 There are however, a number of concerns in relation to the current structure and operation of s 65 of the Fair Work Act. The concerns relate to eligibility requirements, the procedural nature of the provision and the limited availability of enforcement mechanisms. For example, women who have experienced family violence generally have a more disrupted work history,^[56] while it may make it more difficult to satisfy eligibility requirements. Further, in its current form, the provision is procedural rather than substantive. It provides that an employee is entitled to request flexible working arrangements, receive a response and, if that request is refused, be provided with a written statement of reasons.^[57]

16.71 The Discussion Paper released with the NES Exposure Draft in March 2008 explained the rationale behind the creation of a procedural rather than substantive provision. It indicated that a similar provision in the UK had demonstrated that:

Simply encouraging employers and employees to discuss options for flexible working arrangements has been very successful in promoting arrangements that work for both employers and employees.^[58]

16.72 There are also limited enforcement mechanisms available where an employee considers a request has been unreasonably refused. Section 44 of the Fair Work Act provides that an order cannot be made under the civil remedies provisions in relation to contraventions of s 65(5). As a result, civil remedies for breaches of the flexible working arrangement NES do not apply if an employer refuses a request, other than on reasonable business grounds. In addition, s 739 of the Fair Work Act provides that FWA must not deal with a dispute about whether an employer had reasonable business grounds to decline a request for flexible working arrangements unless the clause is replicated in an enterprise agreement.^[59]

Submissions and consultations

16.73 In the Employment Law Issues Paper, the ALRC invited stakeholder comment on whether experiencing family violence should be included as a basis upon which an employee should be entitled to request flexible working arrangements under the NES.^[60]

16.74 Overall, stakeholders who considered this issue strongly supported the inclusion of family violence as a ground upon which an employee should be entitled to request flexible working arrangements.^[61]

16.75 Stakeholders expressed the view that the provision of flexible working arrangements would ‘enhance the participation and job security’ of employees experiencing family violence, while allowing employees to deal with issues arising from family violence which may impact on their ability to attend work, or work safely and productively.^[62]

16.76 Whilst recognising that, in many workplaces, ‘employers and employees work through and deal with many challenging issues affecting workers in their professional and personal lives’,^[63] including the impact of family violence, several submissions expressed the view that existing legislative provisions are insufficient, and that there is a need for a ‘more secure entitlement to access flexible working arrangements’.^[64]

16.77 The educative and normative effect of the inclusion of family violence as a basis for requesting flexible working arrangements was noted by the Redfern Legal Centre.^[65]

16.78 Submissions highlighted that the amendment would avoid, for instance, the need for victims of family violence to seek casual employment to achieve flexibility, or to rely solely on the ‘goodwill’ of their particular employer to access flexible working arrangements,^[66] particularly as victims of family violence are often casual employees, and with little power to negotiate such changes.^[67]

16.79 The Queensland Law Society also noted that this amendment may ‘enhance the capacity of the employer to support the employee and to respond appropriately’.^[68]

16.80 However, two submissions, from Women’s Health Victoria and ACCI did not support amendment to s 65. Women’s Health Victoria suggested that s 65 ‘may not be the best place to promote flexible leave arrangements for victims of family violence’, noting it would require a shift in the focus of the provision. The submissions highlighted that it is a relatively new provision and suggested there is a need to evaluate the current effectiveness of the provision prior to any amendment.^[69] Women’s Health Victoria did note, however, that if the provision were to be amended to include family violence,

it would send a strong message to employers and employees that family violence is a serious and widespread issue that impacts on the workplace. This could begin conversations about family violence within workplaces and would go some way to challenging violence supportive attitudes and behaviours in our community.^[70]

16.81 In its submission, ACCI indicated that it would not support any changes to the Fair Work Act at this stage, but noted that ‘this is not to say that ACCI believes that all of the laws currently operate as intended and will not require amendment in the future’.^[71] In particular, ACCI expressed the view that:

Many employers already provide important support in the form of employment opportunities and income, access to confidential advice and counselling, time off for personal circumstances in line with employment legislation or on a needs basis.^[72]

16.82 Instead, ACCI suggested that individual flexibility arrangements under enterprise agreements may be the most appropriate mechanism to address the needs of employees experiencing family violence.^[73]

Other issues

16.83 A range of other issues, such as: the appropriate definition of family violence, verifying entitlement, and the need for confidentiality in relation to any information about family violence disclosed to employers are dealt with in Chapters 3 and 14.

16.84 Several stakeholders emphasised the importance of flexible working arrangements in ensuring employees with children are able to care for their children, particularly where they have been affected by family violence. For example, the National Network of Working Women’s Centres (NNWWC) emphasised that family violence ‘impacts on the whole family group or those living in the immediate domestic environment and that children may also have special needs at this time’.^[74] On this basis, the NNWWC supported the amendment, as well as the need to ensure that the existing provision could be used by employees to care for children who are affected by family violence.

16.85 The Australian Council of Trade Unions (ACTU) argued that eligibility for the right to request flexible working arrangements should be extended ‘to all employees who care for or support (or are expected to care for or support) a person who reasonably relies on the employee for care or support’. The ACTU suggested that this wording would

accommodate employees who are victims of domestic violence with dependants, as well as employees on whom a person suffering domestic violence reasonably relies on for care or support.^[75]

16.86 Finally, Women’s Health Victoria emphasised the need to accompany any amendment with the provision of materials for employers and employees

explaining the reason for its inclusion, legal definitions of what constitutes family violence, situations in which the clause might be enlivened, and a list of family violence support services for victims.^[76]

Limitations of current provision

16.87 In the Employment Law Issues Paper, the ALRC outlined a number of concerns in relation to the current structure and operation of s 65. Stakeholders reiterated the concerns identified by the ALRC in relation to the procedural nature of the provision and the lack of appeal mechanisms. In addition, concerns were expressed with respect to eligibility and the timeframe within which an employer must respond to the request for flexible working arrangements.

16.88 With respect to the procedural nature of the provision, the NNWWC emphasised that ‘there are limitations with only having a right to request and not an entrenched clear entitlement’.^[77]

16.89 Two others expressed particular concern about the lack of enforcement mechanism or grievance procedure where an employee considers a request has been unreasonably refused.^[78] In particular, the AHRC suggested that the ‘same rights of redress applicable to the other nine NES be extended to the unreasonable refusal of a request for flexible work arrangements’.^[79]

16.90 Similarly, the ACTU submitted that denial of appeal rights to FWA, except where specifically provided for in an enterprise agreement, raised issues of justice, stating that ‘it is wholly inappropriate that such a basic right to procedural fairness be left to the vagaries of the bargaining framework’.^[80] The ACTU also submitted that preventative measures should be taken to ensure employers cannot make unreasonable refusals in response to requests for flexible working arrangements. The ACTU suggested the provision should outline an employer’s obligations to have ‘properly considered’ and ‘reasonably endeavoured to accommodate the request’.^[81] The ACTU proposed the inclusion of wording from s 14A of the Equal Opportunity Act 1995 (Vic).^[82]

16.91 In addition to the concerns identified by the ALRC in the Employment Law Issues Paper, stakeholders such as the AHRC highlighted that:

Women constitute the majority of those experiencing domestic violence and many have broken labour market participation … It may therefore be unrealistic to expect an employee in danger to fulfil the eligibility criteria before being formally able to request flexible working arrangements. The ALRC may therefore wish to consider whether eligibility requirements which restrict the categories of employees who can make a request for flexible working arrangements should be removed.^[83]

16.92 Other stakeholders, such as the ADFVC, Domestic Violence Victoria and the Domestic Violence Resource Centre Victoria (DV Vic and DVRC Vic) and Women’s Legal Services NSW (Women’s Legal NSW), suggested that there be no qualifying period for eligibility to request flexible working arrangements. The ADFVC, in particular, argued that it is ‘necessary to overcome the disadvantage faced by victims of family violence who are more likely to have disrupted employment as a result of the violence’.^[84]

16.93 The NNWWC submitted that if family violence were included as a ground upon which an employee could request flexible working arrangements, ‘the timeframes for making such a request would also have to be significantly less than those in the current s 65 (21 days) because of the unpredictable nature of domestic violence,’ suggesting that a seven day period would be more appropriate.^[85] The NNWWC also suggested that if a request is declined, the employee should be able to access alternative options, including leave.

ALRC’s views

16.94 In many cases, employers and employees will be able to negotiate flexible working arrangements to suit the needs of both parties in the particular employment context. Under existing arrangements, while employees are able to request flexible working arrangements outside the scope of the NES, they are not entitled to a response or reasons under the NES.

16.95 When granted, flexible working arrangements may assist employees to deal with issues arising as a result of family violence that may have an impact on their ability to attend work, or work safely and productively. Arrangements that may assist victims of family violence include: a change in shifts or working hours; changes to work contact details; and changes to work location—all of which are likely to contribute to the safety of the employee.

16.96 While many of the provisions considered in this Discussion Paper are relatively new, and are the product of lengthy consultation processes, the ALRC considers that many are inadequate to deal with the particular impact of family violence on employees and workplaces, such as the flexible working arrangements provision.

16.97 Accordingly, the ALRC considers that the amendment of s 65 of the Fair Work Act,to provide employees experiencing family violence with the right to request flexible working arrangements, is a significant, but necessary, amendment.

16.98 In addition, the ALRC considers that the evaluation of the effectiveness of the current provision is necessary and could usefully form part of the Post-Implementation Review of the Fair Work Act. As a result, the ALRC does not intend to make any proposals in relation to concerns expressed about the operation of the current provision insofar as they reflect systemic issues—for example in relation to the procedural nature of the provision, or the limited appeal mechanisms, or general eligibility for access to flexible working arrangements.

16.99 However, in proposing that family violence be included as a ground upon which an employee should be entitled to request flexible working arrangements, there are two aspects of the current provision that are likely to be particularly restrictive for victims of family violence—eligibility and the employer response period. The ALRC therefore proposes that s 65 of the Fair Work Act be amended to provide that an employee who is experiencing family violence, or who is providing care or support to a member of the employee’s immediate family or household who is experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

16.100 This formulation would provide employees with the right to request flexible working arrangements in order to deal with their own family violence-related issues, or to provide care or support to an immediate family member experiencing family violence. The ALRC considers that this would address the concern expressed in relation to employees who have children affected by family violence, but who are not eligible to request changes under s 65 as their children are over the school age.

16.101 The ALRC considers that the new provision should mirror the existing requirements in s 65, with two exceptions. First, the ALRC considers that, for the purposes of the new ground, there should be no eligibility requirements such as those required under s 65(2) of the Fair Work Act. The ALRC has formed this view in light of evidence about the often disrupted work history of victims of family violence that may preclude victims from requesting flexible working arrangements despite the need to do so. As the provision is procedural rather than substantive, providing employees with access to the right to request will not, in the ALRC’s view, impose a substantial additional burden on employers, as employers are still able to refuse requests on reasonable business grounds.

16.102 Secondly, the ALRC considers that the new provision should mirror s 65(4), except that it should provide that an employer must give the employee a written response to the request within seven days, stating whether the employer grants or refuses the request. In light of the unpredictable nature of family violence, employees requesting flexible working arrangements are likely to require an immediate change to working arrangements, particularly where they are necessary to ensure the employee’s safety. The ALRC would be interested in stakeholder views of the appropriateness of the proposed seven day response period.

16.103 As outlined above, several stakeholders made submissions in relation to the expansion of eligibility to the right to request flexible working arrangements. For example, the ACTU suggested an expansion to ‘all employees who care for or support (or are expected to care for or support) a person who reasonably relies on the employee for care or support’.^[86] While noting these concerns, the ALRC considers that expansion of eligibility to the right to request flexible working arrangements in the existing provision, where not directly related to family violence, extends beyond the Terms of Reference for this Inquiry.

Family violence-related leave

16.104 Under the NES, employees are entitled to a range of types of paid and unpaid leave, including: parental leave; annual leave; personal/carer’s leave; compassionate leave; community service leave; and long service leave.^[87]

16.105 An employee who is a victim of family violence may use a range of combinations of leave entitlements in order to take time off work for purposes related to family violence. For example, an employee may access accrued annual or personal/carer’s leave and, in some instances, discretionary miscellaneous leave, where he or she needs time, for example, to apply for a protection order or attend court proceedings, relocate, care for children or receive medical attention. However, this may mean that victims of family violence exhaust their leave entitlements, particularly where the family violence occurs over a prolonged period of time.

16.106 Section 107 of the Fair Work Act includes notice and evidence requirements in order to access leave under the NES:

• An employee must give his or her employer notice of the taking of leave as soon as practicable (which may be a time after the leave has started) and advise the employer of the expected period of the leave.^[88]

• To access personal/carer’s leave, an employee must, if required, give their employer, evidence that would satisfy a reasonable person that the leave is taken for the specified reason or permissible occasion.^[89]

16.107 Contravention of the leave-related NES (other than unpaid parental leave) is prohibited under s 44 of the Fair Work Act, which is a civil remedy provision.Currently, if an employer breaches the NES, an employee, employee organisation or an inspector may make an application for orders in relation to that contravention and the employer may be liable to pay a civil penalty of a maximum of 60 penalty units for each contravention.^[90]

16.108 As a preliminary matter, the considerations outlined earlier in this chapter with respect to the history, nature and role of the NES; the need to consider and balance the role played by government and business; and the introduction of entitlements on the basis of family violence (as opposed to some other circumstance or characteristic) discussed in Chapter 14, also apply in the context of discussions about family violence leave.

Issues Paper

16.109 In the Employment Law Issues Paper, the ALRC considered whether employees should be entitled to some form of family violence-related leave. Provision for such leave was discussed through possible amendments to the NES, inclusion in family violence clauses as part of enterprise agreements, and/or in the context of modern awards.^[91]

16.110 With respect to the NES, the ALRC asked whether the NES should be amended to provide for an entitlement to family violence leave. In addition, the ALRC asked stakeholders to make submissions on the circumstances under which an employee should be entitled to take such leave, the amount of days an employee should be entitled to take, and whether such leave should be paid or unpaid.

16.111 The ALRC noted that a number of overseas jurisdictions have enacted legislation which entitles victims of family violence to take leave from work, including specifically identified family violence leave, or requirements to grant ‘reasonable and necessary leave’ for purposes related to experiencing family violence.^[92]

16.112 The ALRC also commented that as at March 2011, when the Employment Law Issues Paper was released, entitlements to additional leave in Australia had been introduced under family violence clauses included in some enterprise agreements and through state awards. The number of enterprise agreements and awards including such provisions has since increased. ^[93]

Submissions and consultations

16.113 Submissions received in relation to this issue were overwhelmingly supportive of the introduction of a minimum statutory entitlement to family violence leave.^[94] The exception to this was the submission received from ACCI which is discussed below.

16.114 Many stakeholders expressed their support for family violence leave by reference to the need for a minimum statutory entitlement. The AHRC emphasised that:

Existing leave provisions in the FWA may not be adequate for employees affected by domestic violence, as there are no provisions which specifically aim to assist such employees … The Commission notes the inadequacy of the leave provisions contained in the FWA and supports further consideration of the FWA being amended to specifically provide paid domestic/family violence leave.^[95]

16.115 In its submission, the Redfern Legal Centre highlighted the need for family violence leave by way of a case study.^[96]

16.116 Amongst those submissions that supported the introduction of family violence leave there was some variation of views with respect to the way any such leave should operate. Submissions reflected broad consensus around the need for leave to be:

• a minimum statutory entitlement under the NES;^[97]
• introduced in the context of a range of initiatives aimed at addressing family violence in the workplace;^[98]
• accessible in a range of circumstances arising from family violence, including for example, to: attend appointments with support services; receive medical attention; receive legal advice or attend court; arrange or undertake child care; arrange accommodation or relocate; or attend to other immediate safety issues;^[99]
• paid;^[100]
• accessible as consecutive or single days, or as a fraction of a day;^[101]
• not subject to a minimum employment or qualifying period, or need to be accrued in advance;^[102] and
• subject to verification of entitlement.^[103]

16.117 However, there were two issues in relation to which stakeholders who supported the introduction in a general sense differed to a varying degree—whether family violence leave should be an additional category or form part of personal/carer’s leave, and the appropriate period of leave.

16.118 Broadly, issues arising in relation to support for minimum statutory entitlements related to employee experiences of family violence and the need for initiatives to be introduced in the context of a national campaign have been discussed above and in Chapter 14. Issues raised in relation to the privacy and confidentiality of any information disclosed to employers are also discussed in Chapter 14.

Minimum statutory entitlement to leave

16.119 As outlined above, stakeholders expressed strong views about the need for a minimum statutory entitlement to family violence leave in order to provide a universal approach to, and understanding of, family violence as a workplace issue.^[104]

16.120 In addition to general arguments about the need for minimum statutory entitlements outlined earlier in the chapter, the ADFVC argued:

The inclusion of a statutory entitlement to family violence leave in the NES is necessary to demonstrate a clear commitment to reducing the economic impact of family violence and supporting victims of family violence to remain in the labour market … This type of leave is too important to be left to develop through the bargaining process alone, as demonstrated through the example of paid parental leave: despite several decades of bargaining, success was incremental at best and ultimately, real change has only eventuated through the recently-adopted federal legislative Paid Parental Leave scheme.^[105]

16.121 A joint submission from DV Vic and DVRC Vic strongly supported the inclusion, stating:

Adoption in the NES of such a universal entitlement would send a clear message (coupled with a communication campaign) to employers and to the Australian community that family violence has a significant impact on the Australian economy, and that preventing and responding to it is a whole of community responsibility.^[106]

16.122 The educative effect of a minimum statutory family leave provision was also noted by the NNWWC.^[107]

16.123 The ACTU also favoured the introduction of family violence leave under the NES, in addition to making provision for the inclusion under other mechanisms such as enterprise agreements. In particular, the ACTU supported the inclusion ‘to ensure all employees have access to the leave regardless of their capacity to bargain for workplace agreements’.^[108]

16.124 Conversely, ACCI submitted that it was not appropriate to amend the NES to provide for family violence leave, emphasising that ‘businesses are not homogenous and any regulatory proposal must be acutely aware of these differences’.^[109] ACCI argued that:

employers often provide paid and unpaid leave where employees need to take time off work for a variety of personal reasons. The reason to take leave doesn’t necessarily involve issues such as domestic violence, but often can … These issues are dealt with every day across hundreds of thousands of workplaces in Australia and in the absence of a dedicated law or regulation.^[110]

16.125 ACCI cautioned that employers are unlikely to ‘accept being forced to take on additional obligations above and beyond what is currently required by existing laws unless a strong case is made out for doing so’.^[111]

Paid leave

16.126 Many stakeholders expressed the view that any entitlement to family violence leave must provide for paid leave, or a combination of paid and unpaid leave, or else risk further disadvantaging victims of family violence and failing to achieve the objects underlying its introduction. ^[112] For example, the ASU argued:

A person experiencing family violence is already subjected to tremendous emotional, psychological and physical stress without the need to further compound pressure due to a loss of income. Further, paid leave enables the person experiencing family violence to maintain economic independence at a critical time when income security is vital to maintaining suitable housing, ensure future safety and on the ability to secure on-going family stability for them and their children.^[113]

16.127 These sentiments were echoed in the submission from the ADFVC:

We do not support a hollow entitlement to take unpaid leave as it is likely to further disadvantage victims of family violence who may be less likely to be in a financial position to afford to take unpaid leave. An entitlement to take unpaid leave undermines financial security: conversations with stakeholders indicate that employees are unlikely to take the leave that they need where it is unpaid due to financial hardship. Therefore, any entitlement to leave must be to paid leave to provide genuine assistance for victims of family violence.^[114]

16.128 Other submissions emphasised that victims of family violence are predominantly women, and as a result, family violence leave must be paid, in recognition of

the fact that it is largely women, who, as a result of the violence, have broken employment histories, are in low paid jobs and can least afford to take unpaid leave at a time where financial security is critical.^[115]

Entitlement to leave by others

16.129 Some stakeholders expressed the view that access to family violence leave should not be restricted to employees who are themselves direct victims of family violence. This issue was reiterated in the context of access to other forms of leave, including carer’s leave, discussed in more detail below. For example, the AHRC suggested:

Friends, relatives, household members and others who are able to assist employees affected by domestic violence may also benefit from flexible working arrangements and leave to enable them to provide this support. The ALRC may wish to consider whether domestic violence provisions not be limited only to those directly experiencing the violence and its aftermath, but also be available to those who are assisting and supporting employees who are affected by domestic violence.^[116]

16.130 The NNWWC noted that family violence ‘impacts on the whole family group or those living in the immediate domestic environment and that children may also have special needs at this time’.^[117]

16.131 Further, several stakeholders emphasised the need to ensure that any entitlement to family violence leave is not subject to a minimum employment or qualifying period or need to be accrued in advance to be accessed.^[118] For example, the ADFVC argued:

A qualifying period would undermine the beneficial nature of this type of leave and potentially exclude the employees most likely to be adversely affected by family violence: given the link between family violence and interrupted employment, some victims may not have been in their employment long enough to meet other Fair Work Act leave qualifying periods.^[119]

16.132 Another entitlement issue raised in submissions was whether both victims and perpetrators of family violence should be entitled to access family violence leave. The Queensland Law Society stated:

An employer should not be required to determine who is a victim and who is a perpetrator of domestic violence. It may often be impossible for the employer to do so and such a determination would require an unwarranted intrusion into the employee’s personal life … To ensure access to justice for all parties, these circumstances should apply to both the applicant and the respondent of any family violence action.^[120]

Separate or additional family violence leave?

16.133 While broadly supporting the introduction of some form of family violence leave, stakeholders expressed differing views as to whether:

• a new statutory minimum entitlement to ‘family violence’ leave should be incorporated into the NES; or
• additional leave for family violence purposes should be incorporated as a subset of personal/carer’s leave under the NES.

16.134 In consultations, stakeholders in favour of a new form of family violence leave expressed the view that it was necessary to label it as separate family violence leave in order to draw attention to the issue and its impact on employees and the workplace in order to highlight it as an issue requiring attention.

16.135 The AHRC commented that, in circumstances where employees already have caring responsibilities, those employees in particular would benefit from ‘additional, specific domestic violence leave’ through a ‘separate entitlement to carer’s leave in the NES’.^[121]

16.136 On the other hand, stakeholders who submitted that leave should be incorporated as a subset of existing personal/carer’s leave, expressed particular concern about labelling of leave as family violence leave having the effect of exacerbating barriers to disclosure already faced by employees discussed in Chapter 14.

Period of leave

16.137 Submissions received in response to the issue of family violence leave were mixed with respect to the appropriate period. Stakeholders suggested:

• no more than two days per occasion;^[122]
• five days paid plus access to other forms of leave;^[123] and
• 20 days, in line with existing family violence leave entitlements under enterprise agreements;^[124]

16.138 Several submissions referred to the Surf Coast Shire Enterprise Agreement 2010–2013, which provides for 20 days of paid family violence leave, as providing an appropriate period of leave.^[125]

16.139 It was also suggested that further analysis of the actual periods of leave taken and potential costs to businesses is required before determining an appropriate quantum.^[126] In addition, the NNWWC submitted:

Before making specific recommendations about the period of leave that an employee may be entitled to, specific to domestic violence, a meta analysis of available research should be conducted to discover average or median periods of the duration of the most significant impacts of domestic violence.^[127]

Verification of entitlement

16.140 While submissions overwhelmingly supported the introduction of family violence leave, many recognised the need to ensure that employees accessing such leave are able to demonstrate their entitlement or experience of family violence in a way that maintains the integrity of the leave system and does not place an undue administrative burden on employers.

16.141 The Queensland Law Society noted that ‘some employers may be concerned about potential abuse of an additional category of leave entitlements’ but suggested this could be mitigated by reference to documentary verification, or referral to an ‘employee assistance scheme, where one exists’.^[128]

16.142 Other stakeholders echoed this approach, suggesting that a number of forms of documentary verification may be appropriate to demonstrate an entitlement to family violence leave. These include a document issued by a:

• police officer;
• court;
• health professional, including doctor, nurse or psychiatrist/psychologist;
• lawyer;
• family violence service or refuge worker; and/or
• the employee, in the form of a signed statutory declaration.^[129]

16.143 In addition to general comments about the need for confidentiality of information disclosed, discussed primarily in Chapter 14, the Office of the Australian Information Commissioner (OAIC) also noted:

Where there is more than one acceptable way of demonstrating an entitlement it is often better practice to offer alternatives and give individuals the choice as to the personal information they provide. Providing choice as to the source of information enables individuals to exercise a level of control over their personal information and may assist in minimising barriers to disclosure.^[130]

Access to other forms of leave

16.144 Many stakeholders argued that, in addition to some form of family violence leave (whether as a separate category or as a subset of personal/carer’s leave), employees should also be able to access other forms of existing leave for circumstances arising from family violence.^[131] The Queensland Law Society commented that:

It would be appropriate to add an entitlement to leave to deal with family violence to the existing provisions in place for employees to take leave, including annual leave, long service leave and personal/carer’s leave … If an employee was subject to family violence, the employee should have the option of taking leave in one of the existing categories or in a new category of family violence leave.^[132]

16.145 Other stakeholders supported this view, noting that access to other forms of leave would be particularly important where any family violence leave had been exhausted.^[133] In some cases this may already be possible, for example where an employee experiences injury or illness arising from family violence they may already access personal leave. However, stakeholders also expressed the view that employees experiencing family violence should be able to access carer’s leave in order to care for, support or make necessary arrangements for a person experiencing family violence.^[134]

ALRC’s views

16.146 As is the case with flexible working arrangements, the ALRC recognises that, in many cases, employers will grant employees access to forms of existing leave in circumstances where it may be required as a result of family violence. However, evidence suggests that, in many cases of family violence, victims exhaust their existing leave entitlements. In addition, there is currently a discretionary element associated with the granting of leave in cases of family violence, particularly in such circumstances.

16.147 In light of this, the ALRC considers existing leave provisions provided for in the NES may not be adequate to provide for the needs of employees experiencing family violence. As a result, the ALRC has formed the preliminary view that amending the NES to provide for some form of family violence leave is a necessary change to provide employees with a minimum statutory entitlement to such leave.

16.148 In proposing this amendment, the ALRC reiterates its comments made earlier in this chapter in relation to the role of governments and business in responding to family violence as well as in relation to issues surrounding the need for minimum statutory entitlements.

Minimum statutory entitlement

16.149 As outlined above, the ALRC has formed the view that it may be appropriate for the government to amend the Fair Work Act to provide for a minimum statutory entitlement to family violence-related leave. While recognising the important role played by other forms of regulation in this area, such as enterprise agreements, the ALRC considers a minimum statutory entitlement is necessary and is likely to serve a number of purposes as follows.

16.150 First, it would ensure a universal entitlement to leave for employees experiencing family violence. This is consistent with the themes identified in the conceptual framework for this Inquiry. This would ensure all national system employees would have access to the leave. In light of evidence that it is predominantly women who experience family violence at higher rates than men, and who are not covered by enterprise agreements, the ALRC considers that access to family violence leave through bargaining and enterprise agreements may not be sufficient to protect the safety of employees experiencing family violence.

16.151 Secondly, the ALRC considers the introduction of family violence leave as part of the minimum safety net under the NES is likely to play an educative role. It gives express recognition to family violence as a national issue that has a significant impact on the Australian economy and that both the government and workplaces have a responsibility to address family violence. This would build on the work already undertaken by the government under the National Plan to Reduce Violence Against Women and Their Children and similar initiatives noted in Chapter 1.

16.152 The ALRC also notes the importance of the availability of enforcement mechanisms with respect to any entitlement to family violence leave through the application of civil remedy provisions.

Basic requirements

16.153 The ALRC heard a range of views about the most appropriate form of family violence leave. The ALRC considers that there should be a core of basic requirements with respect to family violence leave, including that it is paid, flexible and easily accessible where necessary, whilst containing sufficient safeguards to maintain the integrity of the leave system. The ALRC considers there is a need for any family violence leave introduced under the NES to be:

• introduced in the context of a range of initiatives aimed at addressing family violence in the workplace;
• accessible in a range of circumstances arising from family violence;
• accessible as consecutive or single days, or as a fraction of a day;
• available to employees who are victims of family violence as well employee’s who need to access such leave to provide care or support to a member of the employee’s immediate family or household who is experiencing family violence;
• not be subject to a minimum employment or qualifying period, or to be accrued in advance;
• paid; and
• subject to verification of entitlement.

Complementary initiatives

16.154 The ALRC considers that there is a need to introduce a range of initiatives to address family violence as a workplace issue. Recognising the need for a holistic approach to addressing family violence and its impact on Australian workplaces, the ALRC has made a number of overarching proposals such as Proposal 14–2 with respect to the need for a national education campaign, and other initiatives.

Paid leave

16.155 Stakeholders made strong arguments in favour of the need for paid family violence leave to avoid provision of a ‘hollow’ entitlement. In light of the focus of this aspect of the Inquiry on ensuring the economic security and independence of employees experiencing family violence, and in light of stakeholder concerns about the possible compounding effect unpaid family violence leave may have, the ALRC has formed the view that any entitlement to family violence leave should provide for a combination of paid and unpaid leave.

Accessibility

16.156 The ALRC is aware that employees may need to access family violence leave in a range of circumstances. Accordingly, the ALRC suggests that any provision under the NES be broadly formulated to enable an employee to deal with a range of circumstances arising from family violence, including for example, to attend appointments with support services; receive medical attention; receive legal advice or attend court; arrange or undertake child care; arrange accommodation or relocate; or attend to other immediate safety issues.

16.157 In order to facilitate the taking of leave in a diverse range of circumstances, the ALRC considers it would be appropriate to allow the taking of family violence leave to be accessible as consecutive or single days, or as a fraction of a day.

Entitlement

16.158 Several stakeholders, including the AHRC, highlighted the impact that family violence often has on the victim themselves, as well as friends, relatives and other household members and suggested the ALRC consider the extension of family violence leave to those assisting and supporting employees affected by family violence.

16.159 In light of these submissions, the ALRC considers an employee who is themselves experiencing family violence, or who is required to provide care or support to a member of their immediate family or household who is experiencing family violence, should be entitled to family violence leave.

16.160 The ALRC suggests any definition of member of immediate family or household should recognise kinship and family relationships of Indigenous people as well as people from CALD communities and those in same-sex relationships.

16.161 Under s 96 of the Fair Work Act, personal/carer’s leave under the NES accrues on the basis of 10 days paid personal/carer’s leave per year of service. The entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.^[135] However, the ALRC considers that the nature of family violence itself, and the often interrupted work history of victims of family violence, are such that family violence leave should not be subject to a minimum employment or qualifying period, or need to be accrued in advance.

16.162 As outlined above, the notice requirements under s 107 of the Fair Work Act provide that an employee must give his or her employer notice of the taking of leave as soon as practicable (which may be a time after the leave has started) and advise the employer of the expected period of the leave.^[136] While the ALRC considers that in some cases it may be difficult for a victim to notify their employer in advance, s 107 appears to strike a balance between the needs of an employee to take leave, often at short notice, with the need for employers to be informed as soon as practicable in order to make appropriate arrangements where an employee will not be attending work. As a result, the ALRC considers the notice requirements under s 107 of the Fair Work Act relating to personal/carer’s leave should be mirrored in any provision relating to family violence leave.

Period of leave

16.163 The ALRC has heard a range of views as to the most appropriate period of any family violence leave. Many stakeholders submitted that 20 days of paid leave would be appropriate. However, while the ALRC considers this period may be appropriate in the context of an enterprise agreement negotiated to take into account the circumstances of an individual employer, it may not be appropriate as a statutory minimum.

16.164 Other stakeholders supported an entitlement of up to two days of leave per occasion. This approach would be in line with the enterprise agreement negotiated at UNSW. However, the ALRC considers that in circumstances of ongoing family violence, this entitlement is likely to result in an employee being entitled to a potentially unlimited amount of leave in any year. Further, conscious of the concerns expressed by employers, the ALRC considers the need to process applications on this basis is likely to impose an unnecessary burden on employers.

16.165 Two submissions expressed the view that the best approach may be to undertake further analysis of actual periods of leave taken and the projected cost to business before determining an appropriate quantum. The introduction of any additional leave will undoubtedly result in increased costs to business, particularly small business. Amongst other factors, the ALRC is required, under the Australian Law Reform Commission Act 1996 (Cth), to consider the cost implications of any proposal. The ALRC has formed the view that analysis of actual periods of leave taken would provide a useful pool of data upon which future policy decisions could be made. However, the ALRC considers any such analysis could usefully be conducted following the introduction of the provision, or form part of the PIR.

16.166 Overall, the ALRC is conscious of the need to balance the needs, rights and responsibilities of employees and employers. Accordingly, the ALRC has formed the view that, in line with the leave periods provided for other forms of leave under the NES, family violence leave under the NES should be for a period of 10 days per year.

Verification of entitlement

16.167 In order to preserve the integrity of the leave system, the ALRC recognises there is a need to ensure that employees accessing family violence leave are subject to the same requirements to demonstrate their entitlement to the leave as other forms of leave. That said, stakeholders have clearly indicated that the types of verification that a victim of family violence may be able to provide to an employer upon request are varied and may include documentation from a range of professionals and support services.

16.168 The ALRC considers that the existing, generally expressed, evidence requirements provided for under s 107 that apply to personal/carer’s leave should also apply to any family violence leave.

16.169 Further, providing employers information about what might constitute appropriate verification could form part of the national education campaign referred to in Proposal 14–2.

Access to other forms of leave

16.170 The ALRC considers it is appropriate to provide that employees experiencing family violence are able to access other forms of existing leave for circumstances arising from family violence, particularly where they have exhausted any entitlement to family violence leave. The ALRC considers that it is already possible to do so in relation to the forms of leave where it is not necessary to demonstrate an entitlement, such as annual leave. However, in light of submissions the ALRC considers it is appropriate to allow employees to access both existing personal/carer’s leave for purposes arising from family violence, as well as any additional family violence leave.

16.171 Under s 97 of the Fair Work Act an employee may take paid personal/carer’s leave if the leave is taken where the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household who requires care or support because of personal illness/injury or an unexpected emergency. The ALRC proposes that s 97 be amended to allow for the taking of leave for circumstances arising as a result of family violence.

Options for reform

16.172 Building on the core of basic requirements outlined above, that the ALRC considers should be part of any family violence leave under the NES, the ALRC considers there are two key models for reform in order to introduce family violence leave under the NES.

16.173 The first model, Proposal 16–2, provides a new minimum statutory entitlement to 10 days family violence leave. The second model, Proposals 16–3 and 16–4, provides for the inclusion of an additional 10 days leave, accessible for family violence purposes, as a subset of the existing personal/carer’s leave provided for under the NES.

16.174 The ALRC is interested in stakeholder views on the alternate proposals as well as the issues raised with respect to the basic requirements, including the provision of paid leave as well as accessibility, entitlement, verification of entitlement and period of leave.