Employment and Superannuation

Current definitions

3.61 With respect to employment law, neither the Fair Work Act 2009 (Cth) nor the Fair Work Regulations 2009 (Cth) have specific provisions dealing with family violence or the manifestation of family violence in the workplace.

3.62 Similarly, in the other areas of law considered by the ALRC in the Issues Paper, Family Violence—Employment and Superannuation Law, ALRC IP 36 (2010) (Employment and Superannuation Law Issues Paper), there is no definition. This includes the following areas.

3.63 In the pre-employment context, the term domestic violence is included in publications such as the Job Seeker Classification Instrument Guidelines, other material utilised by Job Services Australia, Disability Employment Services and Indigenous Employment Program providers as well as in relation to Job Capacity Assessments and Employment Services Assessments. However, there does not appear to be any relevant definition of domestic violence.

3.64 With respect to occupational health and safety:

• Occupational Health and Safety Act 1991 (Cth) (OHS Act);

• Safe Work Australia Act 2008 (Cth) (SWA Act);

• Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) (OHS Regulations 1991);

• Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regulations 1994);

• Occupational Health and Safety Code of Practice 2008 (Cth) (OHS Code); and

• Codes of Practice developed by Safe Work Australia.

3.65 With respect to superannuation:

• Superannuation Act 1976 (Cth)—specifically, the provisions with respect to early access to superannuation;

• Superannuation (Resolution of Complaints) Act 1993 (Cth)—which establishes the Superannuation Complaints Tribunal;

• Superannuation Industry (Supervision) Act 1993 (Cth)—which makes provision for the prudent management of certain superannuation funds and supervision by Australian Prudential Regulatory Authority (APRA), the Australian Securities & Investments Commission (ASIC) and the Commissioner of Taxation; and

• Superannuation Industry (Supervision) Regulations 1994 (Cth)—which articulate the grounds for early access to superannuation.

3.66 In the superannuation context, there is also no relevant definition of family violence.

Using the common definition

3.67 In the Employment and Superannuation Law Issues Paper, the ALRC did not ask a specific question with respect to the definition of family violence across the various legislative areas under consideration. Nonetheless it is consistent with the approach in Family Violence—A National Legal Response, and the other Issues Papers in this Inquiry to consider its inclusion with respect to the areas covered within the areas of employment and superannuation law. It was also the subject of comment by many stakeholders in this Inquiry.

Submissions and consultations

3.68 For example, in a joint submission, Domestic Violence Victoria and others submitted that:

The definition of family violence would need to be consistent with definitions adopted by other jurisdictions (we refer to recommendations 5–1 and 5–3 of the ALRCs Family Violence: A National Legal Response Final Report (2010).^[49]

3.69 Two stakeholders commented about including a definition of family violence for the purposes of accessing flexible working arrangements under s 65 of the Fair Work Act. The Australian Domestic and Family Violence Clearinghouse suggested that:

‘domestic or family violence’ includes physical, sexual, mental, verbal or emotional abuse by a member of the employee’s immediate family or a member of the employee’s household.^[50]

3.70 Women’s Health Victoria added that, if family violence is included under s 65 of the Fair Work Act, they would recommend, ‘accompanying materials be produced for both employers and employees explaining the reason for its inclusion, legal definitions of what constitutes family violence’.^[51]

3.71 The Queensland Law Society supported the approach of a consistent definition of family violence ‘throughout the various Commonwealth and State Acts’—‘in order to avoid confusion’.^[52]

ALRC’s views

3.72 The ALRC considers that consistency of definitions across the areas under consideration in this Inquiry promotes the seamlessness identified as a key framing principle. Such consistency can then underpin training and awareness in service delivery areas; and facilitate better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies. The ALRC therefore proposes that the Fair Work Act 2009 (Cth) and that relevant guidelines and material be amended to reflect it. The ALRC also proposes that the Superannuation Industry (Supervision) Regulations 1994 (Cth) be amended to include the proposed common definition.