Phases of reform

15.28 Throughout this Inquiry, the ALRC has heard a range of views about how the employment law framework in Australia might be reformed to improve the safety of people experiencing family violence.

15.29 While implementation is ultimately a matter for government, the ALRC suggests that it would be most appropriate to implement the reforms outlined in Chapters 15–18 by way of a whole-of-government five-phase approach as outlined below. The ALRC emphasises that none of the phases are mutually exclusive, nor must they necessarily be sequential. Phases One and Two, in particular, are intended to continue throughout the implementation period and beyond, although the strategies as part of those phases may need to be reviewed and updated where appropriate. It is also vital that any such strategy include a ‘clear timeline’.^[40]

15.30 The ALRC suggests implementation should incorporate the following phases:

• Phase One—coordinated whole-of-government national education and awareness campaign; research and data collection; and implementation of government-focused recommendations.
• Phase Two—continued negotiation of family violence clauses in enterprise agreements and development of associated guidance material.
• Phase Three—consideration of family violence in the course of modern award reviews.
• Phase Four—consideration of family violence in the course of the Post-Implementation Review of the Fair Work Act 2009 (Cth).
• Phase Five—review of the NES with a view to making family violence-related amendments to the right to request flexible working arrangements and the inclusion of an entitlement to additional paid family violence leave.

Diagram: A phased approach to reform.

15.31 The ALRC considers that such an approach is appropriate for a number of reasons. First, despite important work done by the Government and community organisations, awareness about, and recognition of, the possible impact of family violence in an employment context could be improved. Without associated understanding, and in some cases attitudinal change—by employees, employers and others within the employment law system—attempts to reform the employment law framework are unlikely to be effective.

15.32 Secondly, the Fair Work Act, as the pillar of the framework, is a relatively recent piece of legislation that significantly changed the Australian employment law landscape. Its introduction followed extensive stakeholder consultation, and its provisions and interpretation remain controversial. As a result, rather than recommending wholesale changes to the Act at this point in time, the ALRC suggests that, in many cases, it is more appropriate to recommend that the issues raised in this Report be considered in the course of upcoming reviews—such as those in relation to modern awards, as well as the Post-Implementation Review of the Fair Work Act scheduled for 2012.

15.33 Finally, given the complexity of this issue and the potentially pervasive effect of family violence on many aspects of employment, it is clear that a considered, multifaceted and whole-of-government approach is required to effect meaningful change and to increase the safety of people experiencing family violence.

15.34 While suggesting a phased approach, the ALRC emphasises the importance of capitalising on the momentum towards change embodied by the increasing discussion of family violence and employment law at a national level, the inclusion of family violence clauses in enterprise agreements, and changes to modern awards in some states.

Phase One—improved understanding

15.35 Phase One consists of three key aspects. First, the ALRC recommends that the Australian Government initiate a national education and awareness campaign about the effect of family violence in an employment context—aimed at increasing ‘awareness amongst employees, employers and the community’.^[41] The campaign, the details of which are outlined later in this chapter, must be coordinated, adequately resourced and ongoing throughout the phases of implementation of reform in this area.

15.36 Secondly, given the relative lack of research and data with respect to family violence in an employment law context and its importance in providing an evidence base for use in the course of the reviews in Phases 3­­–5, the ALRC recommends a number of research approaches and data collection mechanisms. These include research, monitoring and evaluation by the ADFVC and other bodies, Fair Work Australia (FWA) research and Department of Education, Employment and Workplace Relations (DEEWR) utilisation of existing databases.

15.37 Thirdly, the ALRC suggests that, as a preliminary step, implementation of the recommendations contained in this Report aimed at the government and statutory bodies, such as FWA, the Fair Work Ombudsman (FWO), Safe Work Australia, the Office of the Australian Information Commissioner (OAIC) and the Australian Human Rights Commission (AHRC), are vital to ensuring systemic change. These recommendations encompass the development or revision of guidance material and Codes of Practice, education and training, process reviews, as well as research and data collection.^[42]

Phase Two—family violence clauses

15.38 As outlined in Chapter 16, there has been a move to include family violence clauses in enterprise agreements, with several agreements around Australia now containing such clauses and the Australian Government expressing its support for their inclusion.^[43] The ALRC considers the inclusion of such clauses is likely to serve an important educative function and increase the safety of employees experiencing family violence.

Phase Three—modern award reviews

15.39 Beginning in 2012 there will be several reviews of modern awards. First, FWA is required to undertake an initial review of modern awards to be conducted from 1 January 2012.^[44] The scope of the review is limited to FWA considering whether modern awards achieve the modern awards objectives and are operating effectively, without anomalies or technical problems arising from the award modernisation process. In addition, s 156 of the Fair Work Act provides for review of each modern award every four years. The first review of this kind must commence as soon as practicable after 1 January 2014. The Explanatory Memorandum to the Fair Work Bill states that ‘these reviews are the principal way in which a modern award is maintained as a fair and relevant safety net of terms and conditions’.^[45]

15.40 The ALRC suggests that these reviews provide a timely and constructive opportunity during which to consider the inclusion of family violence-related terms in modern awards.

Phase Four—Post-Implementation Review of the Fair Work Act

15.41 By January 2012, the Australian Government has committed to commencing a Post-Implementation Review (PIR) of the Fair Work Act. The PIR will report on the regulatory impacts of the legislation and whether the Act is meeting its objectives.^[46]

15.42 In considering what improvements could be made to the Fair Work Act to protect employees experiencing family violence, the ALRC is of the view that, at some point, amendments to a range of provisions under the Fair Work Act may be necessary. The ALRC is of the view that the PIR is likely to provide an appropriate forum in which the ALRC’s discussion of the issues relating to family violence, in the context of the Act, may be considered.

Phase Five—review of the NES

15.43 Amendment to the NES would involve a significant change to the Fair Work Act framework following the extensive consultations surrounding the introduction of the Act. With this, and similar considerations discussed in Chapter 17 in mind, the ALRC considers that, rather than recommending changes to the NES in this Report, the NES should be reviewed following implementation of some (but not necessarily all) of the reforms discussed in Phases 1­­­­–4.

15.44 The ALRC has formed the view, however, that further consideration of extending the right to request flexible working arrangements and entitlement to additional paid leave for family violence-related purposes is warranted, given the importance of minimum statutory entitlements in protecting people experiencing family violence. The ALRC suggests that phased implementation of the reforms in this Report, particularly those aimed at increasing awareness, establishing an evidence base, and the negotiation of enterprise agreements and development of workplace policies capturing family violence, is likely to inform any review of the NES.