Summary

18.1 This chapter examines ways in which the Commonwealth occupational health and safety (OHS) system, in the context of moves to harmonise OHS law across Australia, might be improved to protect employees experiencing family violence. In particular it examines: legislative duties—specifically, duties of care and the duty to report notifiable incidents; the nature and role of regulatory guidance; the importance of education and training, and measures to raise awareness about family violence as a work health and safety issue; as well as issues associated with data collection.

18.2 The central premise underlying the chapter is that, where family violence becomes an OHS issue for employees, they should be given the highest level of protection reasonably practicable, and employers should introduce measures to address family violence in such circumstances. This reflects one of the principles underlying the Model Work Health and Safety Bill developed by Safe Work Australia.

18.3 The ALRC concludes that legislative or regulatory obligations may not be the most appropriate means by which to address family violence in the OHS context. The ALRC considers that significant amendments to the OHS system, due to come into effect on 1 January 2012, existing legislative and regulatory duties appear to be sufficiently broad to encompass family violence. Rather, it is lack of awareness or consideration of family violence as an OHS issue that should be the focus of reforms. Accordingly, the ALRC makes a range of proposals focused on: increasing awareness of family violence as a work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area.

Disclosure and privacy

18.4 In making proposals for reform to the OHS system, the introduction of these measures in many cases may increase the disclosure of family violence in the context of OHS. Care needs to be taken to ensure that where family violence is disclosed, any disclosure is responded to sensitively and appropriately, and employers do not take the view that it is ‘too hard’ to take measures to protect an employee experiencing family violence and therefore terminate their employment. For example, while stakeholders have indicated some employers take proactive steps and are supportive, others have indicated that ‘what appears to be a common response to raising an issue of family violence…[is] termination’ of employment.^[1]

18.5 Issues related to disclosure of family violence in an employment context as well as privacy and confidentiality arising from disclosure are discussed in Chapter 14.

Terminology

18.6 The Model Work Health and Safety Bill (Model Bill) developed by Safe Work Australia and the Work Health and Safety Bill 2011 (Cth), discussed in this chapter, move away from the use of ‘employer’ to a more inclusive view of the primary duty holder, using the term ‘person conducting a business or undertaking’ (PCBU).^[2] However, the term PCBU is not yet used in Commonwealth legislation. Due to the implications of such an expanded definition, and to make the traditional distinction between employers and employees clear, the terms ‘employer’, and occasionally ‘duty holder’ when referring specifically to a duty of care, are used.

18.7 Similarly, the terms‘employee’ and ‘worker’ are used interchangeably throughout the chapter. Employee is generally used when discussing the distinction between employees and employers as classes of people, and ‘worker’ for the purposes of OHS legislation, recognising that the Model Bill adopts a broad definition of ‘worker’ instead of ‘employee’ due to the changing nature of work relationships.^[3] Specifically, ‘worker’ is defined as a person who carries out work in any capacity for an employer, including in any of the capacities listed, such as employee, contractor or subcontractor, outworker, apprentice, student or volunteer.^[4]

18.8 This chapter uses the term ‘workplace’ when referring to the place where work is carried out. Under the Model Bill and Work Health and Safety Bill, the duty of care is tied to work activities and there is no place of work restriction. Workplace is defined broadly to include any place where work is carried out or where a worker goes, or is likely to be, while at work.^[5]