Family violence and OHS law

18.28 Family violence may pose a risk to the physical and psychological health and safety, not only of employees who are victims of the violence, but also of co-workers and other third parties. Examples of ways in which family violence may pose an OHS issue or risk include:

• physical or verbal abuse between partners employed at the same workplace;

• causing employees to be distracted or inattentive, leading to reduced ability to operate equipment safely or concentrate on tasks, increasing the risk of accidents;

• threatening a partner or the partner’s co-workers;

• stalking a partner at the partner’s workplace—for example, 29% of victims who were stalked by their previous partner reported that the person using family violence loitered outside their workplace;^[26]

• harassing or attacking a partner or the partner’s co-workers at the partner’s workplace, either in person or through phone calls and emails; and

• in the most extreme cases, family violence-related homicide at the workplace.^[27]

18.29 Family violence as an OHS issue raises a number of important questions about the point at which family violence becomes an OHS issue in the workplace, as opposed to a ‘private’ issue, or one which is more appropriately dealt with as a criminal matter. According to the National Network of Working Women’s Centres (NNWWC):

unfortunately, instances where family violence has intruded into the workplace in our experience are not dealt with well, are seen as ‘private matters’ and too often result in serious injury or death, often witnessed by workmates.^[28]

18.30 Where an employer is aware of family violence, and where that family violence is having an impact on the welfare or safety of an employee (with sufficient connection to their work or workplace), their co-workers, or the workplace itself, it becomes an OHS matter. This in turn raises further questions about employee responsibility for playing a role in managing OHS risks and, where appropriate, informing employers of such risks or incidents.

18.31 Throughout this Inquiry, stakeholders have expressed mixed views about family violence as an OHS issue. While some stakeholders acknowledged that family violence may in some cases become an OHS issue, they emphasised that there are a range of issues yet to be included under the OHS ‘umbrella’ and that family violence is just one issue which is not yet the subject of legislation, Codes of Practice or guidelines.^[29]

18.32 ACCI, for example, submitted that no recommendations should be made in relation to changing existing model OHS laws, regulations, codes or guidance material, ‘given the comprehensive consultations in respect of the model OHS laws’.^[30]

18.33 Other stakeholders stressed the role played by OHS law in protecting those experiencing family violence, emphasising that lack of knowledge, rather than inadequacies in formal definitions represent the greatest challenge in recognising family violence-related incidents in the work context. For example, the NNWWC suggested that the obligations are

not widely recognised by many workplaces. More needs to be done to ensure that workplaces understand the magnitude of the threat of family violence as a workplace issue at all levels.^[31]

Duties under OHS legislation

18.34 There are a range of duties owed by both employers and employees under OHS legislation. Of particular relevance are the duties of care owed by both employers and employees and the duty to report OHS incidents, defined as ‘notifiable incidents’.

Duty of care

18.35 Employers have a range of obligations in respect of all employees—in particular, employers owe their employees a duty of care both at common law and under legislation. The primary focus of this chapter is the legislative duty of care.

18.36 Under the OHS Act, ‘[a]n employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees’.^[32]

18.37 The Model Bill provides that a PCBU must ensure, so far as is reasonably practicable:

• the health and safety of workers engaged, or caused to be engaged by the person while the workers are at work in the business or undertaking;

• the health and safety of workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking;

• the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking;

• the provision and maintenance of a work environment without risks to health and safety; and

• a range of other requirements, including to provide information and training to protect all persons from risks to their health and safety and monitoring of the health of workers for the purposes of preventing illness or injury arising from the conduct of the business or undertaking.^[33]

18.38 As outlined above, the Model Bill provides that the primary duty holder is a PCBU and expands the class of persons to whom a duty is owed to ‘workers’, defined to include, among others, employees, subcontractors, outworkers, apprentices, students and volunteers.^[34]

18.39 While at work, employees also have a duty to take reasonable care for their own health and safety, including to take care that their acts or omissions do not adversely affect the health and safety of others and to comply and cooperate with reasonable policies and instructions given by the employer. These duties also apply to a person at a workplace.^[35]

18.40 The Explanatory Memorandum to the Model Bill explains that ‘the standard of reasonably practicable has been generally accepted for many decades as an appropriate qualifier of the duties of care in most Australian jurisdictions’.^[36] It requires an employer to do what can reasonably be done in the circumstances, considering:

• the likelihood of the hazard or risk occurring;

• the degree of harm that might result;

• what the person knew, or ought to have known, about the hazard or risk and ways of eliminating or minimising it; and

• the availability and suitability of ways to eliminate or minimise the hazard or risk.^[37]

18.41 In combination with the broader category of the primary duty holder (PCBU) and the category of people to whom the duty is owed (workers), the primary duty of care is tied to work activities wherever they occur. The definition of ‘workplace’ under the Model Bill as any place where work is carried out or where a worker goes, or is likely to be, while at work, significantly expands OHS duties.^[38] As a result, where a worker is working from home or carrying out work in a person’s home—for example, in the case of a tradesperson, nanny or gardener—and family violence exists, this engages OHS duties in a way possibly not envisaged under existing legislation.

18.42 In any event, as one commentator has noted, ‘the broad formulation of the general duty provisions clearly covers hazards hitherto unregulated, such as ergonomic and psychosocial hazards’.^[39] By extension, the broad formulation is also likely to cover health and safety risks arising as a result of family violence, provided there is sufficient connection to work.

18.43 As an alternative to a broad duty of care, some overseas jurisdictions have incorporated a specific duty of care with respect to family violence. For example, in Ontario, the Occupational Health and Safety Act 1990 RSO c 01 (Ontario) provides:

Domestic violence

32.0.4 If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker. 2009, c. 23, s. 3.

Duties re violence

32.0.5 (1) For greater certainty, the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28 apply, as appropriate, with respect to workplace violence. 2009, c. 23, s. 3.^[40]

Submissions and consultations

18.44 In Family Violence—Employment and Superannuation Law, ALRC Issues Paper 36 (2011)(Employment Law Issues Paper), the ALRC outlined a suggestion to amend OHS legislation to make explicit employers’ duties related to workplace risks caused by family violence.^[41] The ALRC noted that such an amendment may conflict with the practice of relying on broadly-formulated duties in legislation, and noted that a range of other options may be available to achieve the same purpose—the protection of victims of family violence. As a result, the ALRC signalled that it was not considering proposals to amend OHS legislation on this issue. However, the ALRC asked how employers view the duty of care and their obligations related to workplace risks involving family violence.^[42]

18.45 A limited number of submissions directly addressed this issue. Most focused on whether the legislative duty of care should be amended specifically to account for family violence, rather than on how employers view that duty of care or their obligations in respect of it.

18.46 Primarily, stakeholders indicated that existing legislation is sufficiently broad to ensure that employers owe a duty of care in circumstances where family violence is adequately connected to the workplace and those to whom the employer owes a duty of care.^[43] For example, ACCI submitted that:

Employers must take reasonable precautions to prevent workplace related harm to workers and the public, including the possibility of harm to employee from nonemployees. There should not be any specific law dealing with specific situations, such as family violence, given that the existing legal framework already covers this situation as part of the general duties.^[44]

18.47 Other stakeholders, however, supported the specific inclusion of family violence in OHS legislation, suggesting that it would

require duty holders to take appropriate actions when they become aware (or ought to be reasonably aware) of family violence that could be a risk to a worker in the workplace. A statutory measure would provide support to duty holders with specific guidance when dealing with the impacts of family violence in the workplace.^[45]

18.48 In consultations, stakeholders also highlighted the duties owed by employees. In particular, SWA emphasised that it would be difficult for an employer to take steps where a worker has not disclosed the existence of, or the risk posed by, family violence. Apart from the duty that an employer has to protect the health and safety of their workers, employees also have a duty to take reasonable care for their own safety at work and that their own acts or omissions do not adversely affect the health and safety of other persons.^[46]

ALRC’s views

18.49 The ALRC considers that an employer owes a duty of care where family violence has an impact on the health and safety of workers while they are at work—recognising that the primary duty of care under the Model Bill is tied to work activities wherever they occur—and that employers must take reasonably practicable steps to protect worker safety in this regard. Employer responses and what constitutes reasonably practicable steps are discussed later in this chapter.

18.50 The duty of care owed by employers under OHS legislation is sufficiently broad to account for risks or incidents involving family violence related to work. This is particularly so given the formulation of duties under the Model Bill. As a result, the ALRC makes no proposals with respect to amending the duty of care under the OHS Act or Model Bill.

18.51 However, the ALRC is of the view that, in many cases, employers are not aware of the breadth of their duty of care, nor do they consider the risks associated with family violence to be a work issue. This is particularly likely to be the case from 1 January 2012 due to the expanded definitions and concepts of PCBU, worker and workplace under the Model Bill. Similarly, while workers may have legitimate reasons for not wishing to disclose family violence, they also need to be aware of their duties to take reasonable care for their own health and safety and ensure family violence does not adversely impact on others. Accordingly, the ALRC makes a range of proposals in relation to the need for guidance, education, training and appropriate employer responses later in this chapter.

Duty to report notifiable incidents

18.52 The other duty considered in this chapter is the duty to report. OHS laws across Australian jurisdictions currently require reporting of all workplace deaths as well as certain workplace incidents to the relevant authority, such as Comcare or the SRCC. The primary purpose of this requirement ‘is to allow regulators to investigate incidents and potential OHS breaches in a timely manner’.^[47]

18.53 Under the OHS Act, employers must notify the regulator of accidents that cause the death or serious injury of any person, the incapacitation of an employee, or that are ‘dangerous occurrence[s]’.^[48] The OHS Regulations 1991 define a ‘dangerous occurrence’ as one ‘result[ing] from operations that arose from the undertaking conducted by an employer’ that could have caused death or serious injury to any person or incapacitation to an employee, but did not actually do so.^[49] However, in light of the alternative requirements under the Model Bill, the focus of this chapter is on the ‘notifiable incident’ system under the Model Bill.

18.54 Part 3 of the Model Bill provides for analogous requirements with respect to incident notification, including ‘notifiable incidents’ and ‘dangerous incidents’. A notifiable incident is defined to include deaths, serious injuries or illnesses, or any of a set of listed dangerous incidents.^[50] The definition of serious injury or illness requires a person to have immediate medical treatment for a range of serious injuries including, for example, amputation, head injuries, burns, or the loss of a bodily function.^[51] The definition of dangerous incident is one that exposed a worker or other person to, among other things, a serious risk from immediate or imminent exposure to an uncontrolled leakage, explosion or collapse.^[52]

18.55 Employers have a duty to report notifiable incidents to regulators in line with the requirements in cl 38 of the Model Bill and to keep records of such incidents for at least five years.^[53]

18.56 In the context of this system of reporting, it is possible that acts of family violence resulting in death or serious injury could be considered notifiable incidents. The Model Bill allows for other categories of incidents to be included as ‘notifiable incidents’ under the regulations, but no incidents relevant to family violence are currently included in the Model Regulations.

Issues Paper

18.57 In the Employment Law Issues Paper, the ALRC noted that several submissions in response to the 2009 exposure draft of the Model Bill expressed the view that the definition of ‘notifiable incident’ should include acts of violence directed toward workers or threats of such acts and that many or most incidents of family violence would likely fall within the bounds of such a definition, making it mandatory to report them.

18.58 The ALRC expressed the view that mandatory reporting provisions through the notifiable incident scheme would be likely to raise the visibility of family violence as a work health and safety issue, underscore the gravity of such incidents and eliminate employer discretion in reporting of incidents. The ALRC also suggested that the notifications may serve a data collection purpose. This issue is considered later in this chapter.

18.59 However, the ALRC also acknowledged that some uncertainty may arise with respect to which incidents would be required to be reported and about the practical effect of amending the definition, in part because there may be ‘shortcomings in the level of reporting of incidents’ generally.^[54]

18.60 The ALRC subsequently asked for comment on the possible effects of amending the definition of ‘notifiable incident’ to explicitly require employers to report acts of violence, including family violence.^[55]

Submissions and consultations

18.61 In consultations, SWA expressed the view that the current definition of notifiable incident is sufficient to capture any death or serious injury arising from family violence that occurs in the workplace, but not such threats in such circumstances.^[56] However, most submissions supported amending the definition of notifiable incident in the Model Bill to include acts or threats of family violence directed at those to whom employers owe a duty of care.^[57] Stakeholders such as the ADFVC submitted that ‘failure to do so perpetuates the invisibility of domestic violence as a workplace issue’.^[58]

18.62 The NNWWC emphasised the importance of including acts or threats of violence, including family violence, as notifiable incidents under the legislation ‘to ensure they are taken more seriously in a preventative environment’ and to provide for a regulatory and compliance response.^[59]

18.63 The ADFVC supported the amendment, suggesting it could be implemented through

amendment to s 35(1) of the Model Bill to include an express reference to an act of family violence as a notifiable incident or by including an act of family violence in the Regulations which set out circumstances giving rise to the section 35(1)(c) definition of dangerous incident.^[60]

18.64 In addition, several stakeholders indicated that if any amendment were introduced, thought would need to be given to the privacy consequences arising from such amendment.^[61]

18.65 Conversely, several stakeholders opposed any amendment to the definition of notifiable incident on the basis that it would not fit with the purpose of the system as well as highlighting the practical difficulties which would arise from any amended definition. For example, ACCI submitted that a definition of notifiable incident which included acts or threats of violence including family violence

would largely rely on a subjective assessment by the employer, manager or supervisor, rather than an objective standard and would involve uncertainty for the employer (ie How would an employer know that the three major elements were present, which would require them to notify the authorities: a ‘threat’ of ‘family violence’ which was ‘directed towards workers’?).^[62]

18.66 ACCI acknowledged that, while clear actions of violence ‘with witnesses in a workplace’ would already be covered under the definition, it expressed concern about employers determining the point at which notification should occur. The Queensland Law Society reiterated these concerns, stating that ‘if an obligation to report is placed on an employer the extent of the employer’s responsibility should be clarified’, given that the definition of family violence is broad.^[63]

18.67 Academics from the National Research Centre for OHS Regulation noted that the purpose underlying the reporting system and the definition of notifiable incidents is to provide a basis for dedicated investigation and that, in practice, to have a wider definition would be unworkable.^[64]

ALRC’s views

18.68 Acts of family violence in the workplace which cause death or serious injury are likely to constitute a notifiable incident under the Model Bill. This is not the case in relation to threats. The ALRC acknowledges stakeholder support for the inclusion of acts or threats of violence, including family violence, as notifiable incidents under the Model Bill. However, to the extent that the ALRC could propose that acts or threats of family violence occurring in the workplace be explicitly included as notifiable incidents, the ALRC’s preliminary view is that this is not appropriate, particularly in relation to threats, for a number of reasons.

18.69 First, the purpose of the notifiable incident system is to enable investigation of serious incidents and potential contraventions of OHS obligations in a timely manner, with a view to imposing sanctions and potentially addressing issues with respect to the physical workplace or workplace systems to prevent future occurrences. While not always the case, incidents involving family violence will generally involve the unpredictable behaviour of a third party over whom employers have limited control, rather than a breakdown in workplace systems or precautions. As a result, assuming employers have in place appropriate safety precautions and safety plans which take account of possible risks arising from family violence, discussed in detail later in this chapter, investigation and sanction by the regulator does not appear to be the most appropriate response in this context.

18.70 Secondly, the ALRC acknowledges concerns about uncertainty on the behalf of employers in determining whether to report an act or threat of family violence. Any amendment would also raise questions about the lengths to which an employer would need to go to determine whether their employees are receiving threats (for example, monitoring of emails or telephone calls).

18.71 An additional concern is the administrative load associated with expanding the definition of notifiable incident. The ALRC considers it is likely that employers would err on the side of caution, reporting all acts or threats of which they are aware and that this would contribute significantly to demands placed on OHS regulators. If, in addition to current reporting requirements, all acts or threats of family violence (or violence generally) were included as notifiable incidents the ALRC considers the workplace investigatory system would be unworkable without significant additional resources for regulators.

18.72 In addition, the ALRC considers that the aim underlying moves to amend the definition can be achieved by other means proposed in this chapter. The ALRC therefore does not propose to amend the definition of notifiable incident in the Model Bill explicitly to include acts or threats of family violence.