Guidance

18.73 Throughout this Inquiry it has become clear that there is a need for increased recognition and understanding that family violence may constitute a work health and safety issue. There are a range of mechanisms through which this could be achieved. However, as outlined above, the ALRC does not consider that amendment to OHS legislation is necessarily the most appropriate approach. In the next section of this chapter the ALRC considers:

• the appropriate type of formal guidance about family violence as an OHS issue, with a particular focus on Regulations, Codes of Practice or other formal guidelines;

• the substance of such formal guidance, including defining family violence as an OHS issue and identifying and responding to family violence in this context; and

• the related need for education, training and measures aimed at raising awareness.

Forms of guidance

18.74 In addition to OHS legislation, there is a range of guidance provided to employers and employees about OHS matters in the form of Regulations, Codes of Practice and other material produced by SWA, Comcare and similar bodies.

Regulations

18.75 The OHS Regulations 1991 and OHS Regulations 1994 do not address any type of violence as a health and safety risk, although the OHS Regulations 1994 address the general topic of hazard identification and risk assessment. Similarly, the Model Regulations do not address violence. The role of these regulations is to set out mandatory obligations on specific matters and provide processes or outcomes that duty holders must follow or achieve to meet their general duties under legislation.

Codes of Practice

18.76 While the OHS Code includes a section on risk assessment it makes no mention of violence of any type.^[65] The Model Codes of Practice developed by SWA include ‘How to Manage Work Health and Safety Risks’, ‘How to Consult on Work Health and Safety’, and ‘Managing the Work Environment and Facilities’.^[66] The ALRC understands that SWA is also developing a Code of Practice on workplace bullying. None of these identify or consider responses to family violence as an OHS risk.

18.77 Codes of Practice do not impose mandatory legal obligations. However, they are admissible in evidence before a court as proof of the standards of health and safety that should be achieved by a duty holder to comply with the relevant legislation and regulations. If, for example, the OHS Code is used as evidence in this way, it reverses the burden of proof to the duty holder. Accordingly, where the Code of Practice has not been followed, the duty holder would be required to prove that they complied with their duties by other means (equivalent or better to the Code of Practice).^[67]

Other material

18.78 A range of guidance material supplementing the OHS Regulations and the OHS Code has been published by various organisations, such as Comcare and SWA.^[68] These materials are often industry-specific. In other cases, materials may be useful across industries—for example, sample assessment forms for controlling risks related to manual tasks like bending or twisting. No existing material addresses family violence.

18.79 The SWA Agency Budget Statement indicates that one of the focuses of SWA in 2011–2012 will be on developing the continued development of model Codes of Practice and national guidance material.^[69]

Issues Paper

18.80 In the Employment Law Issues Paper, the ALRC asked whether family violence as an OHS risk should be addressed in the regulations, a Code of Practice or in guidance material. The ALRC also asked how inclusion in any of these types of guidance would affect the likelihood that employers would be aware of, and responsive to, the OHS risk posed by family violence.^[70]

18.81 The ALRC noted that including discussion of family violence in a Code of Practice or guidance material would not necessarily change employers’ legal obligations, but explicit recognition that family violence can affect the workplace could raise both employers’ and employees’ awareness of family violence as a potential work health and safety issue and provide useful guidance to employers on how to respond appropriately.

Submissions and consultations

18.82 While stakeholders supported the provision of some form of additional guidance with respect to family violence as an OHS issue, they were divided as to where this additional material should be provided: OHS legislation; Codes of Practice; or other forms of guidance material.^[71] Stakeholders such as the ACTU suggested that family violence should be within the scope of matters addressed by regulation, and that Codes of Practice and guidance material should provide detail with respect to the duties that arise.^[72]

18.83 Other stakeholders, including the Australian Services Union (ASU), expressed the view that

consideration should be given to the creation of stand alone guidance material that specifically deals with the implications of family violence in the workplace and an employer’s obligations in relation to protecting their employees from manifestations of family violence at the workplace.^[73]

18.84 This was echoed by the Queensland Law Society, which submitted that the introduction of non-statutory guidelines outlining both employer and employee obligations would be useful.^[74]

18.85 However, most stakeholders suggested that Codes of Practice were the most appropriate place to include consideration of family violence as an OHS issue.^[75] For example, the ADFVC recommended that SWA and the ADFVC collaborate to create a specific Code of Practice for family violence-related workplace safety risks, emphasising that

Codes of practice are an important touchstone for duty holders in relation to workplace safety issues as code of practice obligations are admissible as evidence in OHS legal proceedings and can assist in demonstrating compliance with general safety duties. Therefore, it is imperative that a Code of Practice be developed to provide duty holders with necessary guidance in relation to identifying and responding to family violence related workplace risks. Further, a Code of Practice would assist in raising recognition of family violence as a workplace issue.^[76]

18.86 In consultations, the ALRC heard that the Code of Practice with respect to workplace bullying and harassment being developed by SWA or in risk assessment-related Codes of Practice would be the most appropriate locations for material about family violence.

Substance of guidance

18.87 There are a range of issues that Codes of Practice or other guidance material could cover in attempting to explain, and raise awareness about, family violence as a work health and safety issue. In addition to general information about the nature, features and dynamics of family violence, such material should ultimately assist employers and employees to identify, and respond to, family violence in the work context.

18.88 The development of guidance, whether in the form of a Code of Practice, or other guidance material should be distinguished from general education, training and measures aimed at increasing the visibility and understanding of family violence as an OHS issue. The ALRC discusses education, training, and measures aimed at raising awareness later in the chapter.

18.89 In the Employment Law Issues Paper, the ALRC suggested that guidance could encompass issues such as definitions of family violence in an OHS context as well as identifying, and responding to, family violence in the workplace. The ALRC asked what requirements, suggestions or information should be included in regulations, Codes of Practice or guidance material addressing family violence as an OHS risk.^[77]

Defining family violence as a work health and safety issue

18.90 In the Employment Law Issues Paper, the ALRC outlined Ontario’s Health and Safety Guidelines which provide an example of how family violence may be identified as a potential source of workplace violence. These guidelines include ‘domestic violence’ as a ‘key concept’, recognising:

A person who has a personal relationship with a worker—such as a spouse or former spouse, current or former intimate partner or a family member—may physically harm, or attempt or threaten to physically harm, that worker at work. In these situations, domestic violence is considered workplace violence.^[78]

18.91 An additional issue of relevance to clarify family violence as an OHS issue, is an appropriate definition of family violence. In Chapter 3, the ALRC makes a proposal about the appropriate definition of family violence for the purposes of Codes of Practice and other material.

Identifying family violence

18.92 Employers should not be required to conduct potentially intrusive examinations into their employees’ private lives, nor should they be allowed to ignore their responsibilities for the health and safety of their employees. Such a balance may already be implicit in relevant Australian legislation, but more explicit discussion in the context of workplace risks posed by family violence may be helpful.

18.93 In the Employment Law Issues Paper, the ALRC outlined the approach in the Ontario Occupational Health and Safety Act whichdoes not require employers to assess the risk of family violence occurring in the workplace, instead it requires that an employer take precautions only 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’.^[79] The ALRC suggested that this formulation may strike a useful balance in an area where it is difficult to distinguish clearly between workplace and personal responsibilities.

18.94 In identifying family violence in the workplace the ALRC also highlighted that suggestions from Codes of Practice discussing bullying, psychosocial hazards, and general violence may also be of assistance, outlining approaches including:

• reviewing absenteeism records;

• checking injury records;

• conducting confidential surveys to identify possible sources of violence; and

• encouraging workers to communicate about workplace violence.^[80]

18.95 In light of the expanded concept of workplace under the Model Bill, with no place of work restriction, employers may require specific guidance on identifying family violence in non-traditional workplace settings where work is conducted.

Responding to family violence

18.96 In the Employment Law Issues Paper, the ALRC also suggested that guidance may also usefully provide information about how employers should respond to and minimise risks associated with family violence. This is in line with the objects of OHS legislation to assist observance with obligations and ultimately to protect the safety of workers to the highest level reasonably practicable.

18.97 In some cases, employers will already have mechanisms and processes in place which can be utilised to minimise the risk posed by family violence in the work context. Employer and workplace approaches and responses can be multifaceted and there is no ‘one size fits all’. However, risk assessment frameworks and safety plans have emerged as the key way in which employers can respond to the risk posed by family violence as an OHS issue. This section considers general responses as well as providing some discussion of the ways in which risk assessment frameworks and safety plans in particular can be used by employers, and outlines what such frameworks and plans could include.

General employer responses

18.98 Family violence training modules have traditionally used the ‘three Rs approach’—recognise, respond and refer. In responding to family violence, a model employer response should include several components, including legal compliance, policies and procedures, victim safety and support, and education and training.

18.99 As part of the Domestic Violence Workplace Rights and Entitlements Project, the ADFVC is currently developing national resources designed to assist employers in assessing and responding to risks in the workplace, associated with family violence. For example, the ADFVC has developed a draft workplace guide to developing an effective safety plan. The guide allows employers to tailor the safety plan to the specific working environment and business needs and includes a range of tips in developing a safety plan. It also emphasises that workers should be involved in the development of the plan. The guide includes a number of steps which should be taken to assess the workplace and develop the safety plan as well as suggested actions to support safety in relation to each step, including:

Step 1: Assess the nature of the workplace

Every workplace is different. Safety plans needs to reflect the general safety measures that can be introduced as well as the specific plans tailored to the needs of individual staff who disclose, according to the nature of the workplace and the work patterns of individuals. Is work office based, retail, service industry, or manufacturing? Do rosters expose staff to potentially hazardous times such as late at night, early in the morning or at very quiet times of day? Do staff work alone, off site, or beyond mobile range?

Step 2: Assess the workplace for security

Is public access to the workplace restricted? Are security guards on site? Are employees working in remote or isolated locations within the building? Is car parking safe?

Step 3: When an employee discloses

A tailored plan to protect the employee needs to be developed with her and with her consent. The plan needs to reflect her work patterns. Does the employee work at times of greater vulnerability to harassment or attack Does [he or] she work alone? Is she required to work outside the workplace? Is [he or] she within mobile range? How does [he or] she get to and from work? Note that high risk times for exposure to acts of domestic violence are during pregnancy and post-separation. Increase vigilance and support during these times.

Step 4: Assess with the vulnerable staff member, the use of appropriate screening measures

The most common form of domestic violence that employees report experiencing at work is abusive phone calls. How can you prevent the abuser gaining access to the vulnerable staff member? How can this be done without affecting the work performance of the employee? Can you collect evidence of stalking and harassment so that police can follow up concerns? Is there a domestic violence court protection order in place so that you can report breaches? Are you aware of escalating risk?

Step 5: Assess the capacity of the workplace to respond to emergencies

Are you prepared for a crisis situation?

Step 6: Assess the need for a safe area

This is a place where someone under threat can retreat to escape the violence. It may be a room, an enclosed outdoor area or an adjoining business.^[81]

‘Reasonably practicable’

18.100 As outlined above, in fulfilling their duty of care, employers must consider what is ‘reasonably practicable’. This involves considering a range of matters including the likelihood of the hazard/risk; the degree of harm; and knowledge, availability and suitability of ways to eliminate or minimise the hazard or risk.^[82]

18.101 In the Employment Law Issues Paper, the ALRC suggested that guidance—whether in a regulatory provision, a Code of Practice, or a less formal form—may help employers attempting to determine a ‘reasonably practicable’ response to family violence as a work health and safety risk.^[83] Models from state codes of practice and other jurisdictions—in particular, recent legislation and accompanying guidelines from Ontario, Canada—provide examples of what subjects such guidance could discuss.

Submissions and consultations

18.102 Most stakeholders considered the need for increased education in a general sense about the matters considered in this chapter, rather than addressing the substance of specific guidance that may be required. Many related submissions on this point are outlined later in this chapter.

18.103 Some stakeholders expressed views as to the range of areas Codes of Practice or guidance material could address, with respect to family violence as an OHS issue. For example, the Queensland Law Society expressed the view that any such guidance

would need to provide numerous examples of how to deal with situations and be gender neutral, given that both women and men are victims of family violence, with a referral to trained professionals if the situation requires.^[84]

18.104 Women’s Health Victoria suggested:

Introductory information about what family violence is, prevalence, who is affected, and the impact it has on the community should also be included. It should also cover some of the common myths of family violence. The guidance could also recommend the exploration by an organisation (not just at leadership level) of the principles of a family violence free organisation. All employees have a right to feel safe at work and to be treated respectfully. Employees could explore what this means for them.^[85]

18.105 Women’s Health Victoria also suggested that information should contain messages about proactive OHS measures and safety risk management strategies, and the need to ‘recognise, respond and refer’.^[86]

18.106 Women Everywhere Advocating Violence Elimination (WEAVE) suggested that the information needs to include:

• Prevalence and gender profiles of family violence perpetration and victimisation

• The costs and impacts of family violence to individuals, families, businesses and communities

• The dynamics and behaviours of family violence perpetration and victimisation; differentiated responses to perpetrators and victims

• How employers can help.^[87]

Responding to family violence

18.107 As a preliminary point, most stakeholders acknowledged that, in order for employers to be prepared to address the risks associated with family violence in the work context, they must be aware that a worker is experiencing family violence that is likely to result in an OHS hazard or incident. Many stakeholders therefore suggested that ‘for this to happen the employer needs to have in a place structures that encourage employees to disclose family violence problems they may be experiencing’ where they are likely to result in an OHS hazard or incident.^[88]

18.108 Women’s Health Victoria highlighted the importance of leadership, commenting that ‘organisational leaders can set the tone for a workplace culture that is safe, respectful and supportive—one that sends an unambiguous message that family violence is not tolerated’.^[89]

18.109 The ADFVC emphasised that employers ‘need only respond to family violence issues where they impact on workplace performance and safety’. The ADFVC also outlined a number of risk management strategies including:

• encouraging employees to obtain protection orders specifically listing their work address;

• creating and implementing general and individualised safety plans tailored to the individual business or undertaking and needs of workers experiencing family violence; and

• compulsory training for OHS officers, union delegates and human resources staff on family violence issues in the workplace incorporated into training modules which focus on workplace violence.^[90]

18.110 Several stakeholders supported the use of workplace safety plans in addressing the threat of harm to workers experiencing family violence, as well as co-workers.^[91] A range of models were suggested, including the ADFVC guide outlined above.^[92]

18.111 In addition, Women’s Health Victoria suggested other issues to consider when drafting a safety plan include:

• where possible, consider requesting a change of work schedule, work location, or work telephone numbers if practicable;

• if an absence is agreed to, ensure the employee is clear about the plan to return to work. While absent, the employee should maintain contact with the appropriate manager;

• consider getting the employee to identify an emergency contact person should the employer be unable to contact the victim;

• if possible, obtain a restraining order that includes the workplace, and keep a copy on hand at all times. The employee may consider providing a copy to her or his supervisor and reception along with a photo of the perpetrator; and

• reviewing safety of parking arrangements and making changes as necessary.^[93]

18.112 Women’s Health Victoria also suggested the need for a workplace team to identify safety risks; the team to include managers, security, human resource representatives or other relevant employee service staff. Women’s Health Victoria emphasised ‘the need for a robust system of policies across a range of issues within the workplace’:

Auditing existing policies, examining values and mission statements, and considering the effects of organisational culture is one way of doing this. Policies and guidance for managers should also be in place about performance management for employees who are experiencing family violence.^[94]

18.113 Redfern Legal Centre upported the development of workplace policies and procedures that ‘will protect workers from external harassment or intimidation’ and noted that security arrangements should be ‘sufficiently robust to prevent and protect from malicious intervention by the perpetrator of family violence’.^[95]

18.114 The ASU commented that in many cases, workplace responses could build on existing measures or procedures, such as those ‘adopted in relation to customer service staff (who often deal with abusive customers) or other workers at risk of harm or violence’.^[96]

18.115 In consultations, SWA expressed the view that workplace responses can realistically only be focussed on the risks arising from the business or undertaking and what is reasonably practicable for the employer to do in the circumstances.^[97]

18.116 ACCI emphasised that,

given that each situation and circumstance may be different, it is not expected that workplaces will be sufficiently equipped to deal with all possible internal or external threats, particularly if they are due to unforeseen and unpredictable criminal acts of violence or aggression. Whilst businesses can play a role in ensuring its workforce is isn’t exposed to internal or external sources of harm, law enforcement authorities are the responsible bodies to deal with specific instances of possible or actual criminal activities.^[98]

18.117 Several stakeholders also supported the development of an overarching workplace family violence policy which encompassed OHS.^[99]

ALRC’s views

Type of guidance

18.118 The ALRC does not consider it is necessary to make amendments to OHS legislation to expand the broadly formulated duties of care. Similarly, in light of stakeholder views, and to the extent that the OHS Regulations set out mandatory obligations and provide detail with respect to meeting general legislative duties, the ALRC does not consider it is necessary to amend the OHS Regulations to protect the safety of victims of family violence.

18.119 Codes of Practice provide practical guidance on safe work practices and risk management. As discussed above, while Codes of Practice do not impose mandatory legal obligations, they are admissible in evidence before a court as proof of the standards of health and safety that should be achieved by a duty holder to comply with the relevant legislation and regulations. More importantly, the OHS Code, for example, if relied on as evidence in legal proceedings reverses the burden of proof to the duty holder.

18.120 Guidance provided by way of a Code of Practice appears to strike the balance between ensuring employers are aware of the health and safety standards expected of them, while still allowing individual employers sufficient flexibility to tailor their responses according to the nature of the business or enterprise. Consequently, the ALRC considers that the inclusion of information on family violence as a work health and safety issue should at a minimum, be included in Codes of Practice.

18.121 The ALRC is interested in stakeholder feedback on whether it is appropriate to include such information in existing Codes of Practice, for example those developed by SWA, or whether a separate Code of Practice should be developed. The ALRC’s preliminary view is that inclusion in existing Codes of Practice would ensure current risk assessments and employer planning could be adapted to account for the risk posed by family violence.

18.122 However, the ALRC recognises the important role played by other forms of guidance material and suggests that bodies such as SWA, Comcare and the Fair Work Ombudsman should be involved in provision of additional information. This issue is considered in further detail below.

Substance of guidance

18.123 The ALRC welcomes further feedback on the substance of Codes of Practice, but considers that the Codes should include:

• a definition of family violence—in line with that suggested in Chapter 3;

• information about the nature, features and dynamics of family violence;

• possible ways to identify family violence in a work context;

• responsibilities and obligations of employers and employees;

• examples of how family violence may constitute a work health and safety risk; and

• possible employer and workplace responses to the risk posed by family violence.

Identifying family violence

18.124 So far as is reasonably practicable, employers must ensure, the health and safety of employees and others. In determining what is reasonably practicable, consideration is required of what the employer knew, or should reasonably have known, about the hazard or risk and ways of eliminating or minimising that risk. The ALRC considers that guidance could be provided for employers in order to assist them to put in place measures to ensure they are able to identify family violence in the workplace. This is likely to be particularly important under the Model Bill, given the expanded range of potential ‘workplaces’. However, guidance should make clear the distinction between work-related and personal responsibilities.

Responding to family violence

18.125 The ALRC acknowledges the need for workplace responses that are tailored to meet the individual needs of businesses, and of employees within those businesses. A precondition for responding appropriately is to ensure adequate structures are in place for disclosure and reporting of family violence.

18.126 The ALRC considers that, in addition to family violence policies (which include relevant disclosure and reporting structures), risk assessment frameworks and safety plans are vital to protecting the safety of those experiencing family violence in a work context.

18.127 The ALRC considers the risk assessment components currently contained in the Model Codes of Practice could be amended to account for the risk posed by family violence. However, the ALRC welcomes stakeholder feedback on other ways in which the Australian Government can assist workplaces to integrate good risk management practices in relation to family violence into day-to-day business operations.

18.128 The ALRC acknowledges the work done in this area by the ADFVC. However, in addition to the general guide produced by ADFVC with respect to developing a safety plan, the ALRC considers that SWA should develop model safety plans which include measures to minimise the risk posed by family violence in the workplace for use by all Australian workplaces, in consultation with the ADFVC, unions and employer organisations. It may be necessary to develop a number of model safety plans to suit businesses of varying sizes across a range of industries. The ALRC considers that the involvement of unions and employer organisations is important and in line with the object of the framework created by the Model Bill to encourage unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices and assisting employers and employees to achieve healthier and safer working environments.