19.12.2011
16.30 The law of employment, as it related to the relationship between an individual employer and employee, has its basis in the common law—specifically the law of contract. The rights and obligations of an employer and an employee are generally governed by, and arise from, the terms of a contract of employment. However, rights and obligations also arise from a range of other sources, including under legislation, the terms of which may prevail over the contract of employment. One such source is the Fair Work Act, which provides that there are several types of agreements, referred to as enterprise agreements, which can prevail over contracts of employment. [30]
16.31 The objects of Part 2–4 of the Fair Work Act, which deals with enterprise agreements, are to:
provide a simple, flexible and fair framework that enable collective bargaining in good faith, particularly at an enterprise level, for enterprise agreements that deliver productivity benefits; and to enable [FWA] to facilitate good faith bargaining and the making of enterprise agreements.[31]
16.32 There are three types of enterprise agreements: single-enterprise agreements; multi-enterprise agreements; and ‘greenfields’ agreements.[32] Enterprise agreements govern the terms and conditions of employment and can be made between one or more employers and either their employees, or one or more employee organisations. However, a large proportion of the workforce in Australia is not covered by an enterprise agreement.[33]
16.33 The Fair Work Act lists several categories of matters in relation to enterprise agreements: permitted matters that may be included; [34] mandatory terms that must be included; [35] and unlawful terms that cannot be included or that are of no effect.[36] In order to be approved by FWA, there are a number of requirements, one of which is that it must pass the ‘better off overall’ test. That is, FWA must be satisfied that employees are better off overall under the enterprise agreement, as opposed to the conditions under the relevant modern award.[37]
16.34 The Fair Work Act also contains a range of requirements with respect to the enterprise agreement bargaining process; for example, a requirement that parties bargain in good faith, as well as detailed provisions in relation to representation during bargaining.[38]
16.35 IFAs and family violence clauses in enterprise agreements provide two mechanisms that may assist to account for the needs, and protect the safety, of those experiencing family violence.
Individual flexibility arrangements
16.36 There is a need to ensure that workplace responses to family violence are consistent, but also sufficiently flexible to allow an employee and employer the opportunity to tailor specific working arrangements to meet the needs of both parties.
16.37 Section 202 of the Fair Work Act requires that an enterprise agreement must include a ‘flexibility term’.[39] A flexibility term allows an employer and an employee to make a specific IFA that would vary the effect of the enterprise agreement to account for the employee’s particular circumstances in order to meet the genuine needs of the employee and employer.[40] Where a flexibility term is included in an enterprise agreement, the scope of an IFA is limited by the flexibility term in the enterprise agreement itself.[41] If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.[42]
16.38 The ALRC considers that while IFAs may act as one mechanism through which to account for the needs of employees experiencing family violence, they may not necessarily be the most appropriate in the family violence context. However, the ALRC acknowledges the potential role IFAs may play in some circumstances where an employee is experiencing family violence and recommends that the FWO include information in existing guidance material on negotiating IFAs where an employee is experiencing family violence.
Is there a role for IFAs where an employee is experiencing family violence?
16.39 Stakeholders have expressed differing views on the usefulness of IFAs generally and more specifically in relation to the use of IFAs in circumstances where an employee is experiencing family violence.[43]
16.40 In some circumstances, where no other entitlements exist, IFAs may prove useful in responding to the needs of employees experiencing family violence.[44] IFAs may ‘deliver a level of individual flexibility [which] could accommodate employees with tailored conditions’.[45] For example, where an employee is in a position to negotiate, an IFA may be negotiated ‘in order to seek temporary changes to working patterns, such as shorter or alternative hours or the ability to work from home to care for children’.[46]
16.41 However, the circumstances in which IFAs could help protect employees experiencing family violence are limited and the introduction of other measures, such as those recommended in relation to family violence clauses, modern awards and ultimately the NES, may be preferable.[47] Stakeholders have expressed a range of concerns with respect to the usefulness and appropriateness of IFAs in circumstances where an employee is experiencing family violence. Concerns primarily arise in relation to: unequal bargaining power;[48] the level of confidence, knowledge and skill required to negotiate an IFA;[49] and the limited likelihood of victims of family violence negotiating IFAs.[50] In addition, employees experiencing family violence often require immediate flexibility or altered arrangements in order to deal with unforeseen circumstances arising from family violence—‘IFAs do not really take these emergencies that require flexibility into account’, even where employers may be willing to negotiate an IFA.[51]
Development of a guide to negotiating IFAs
16.42 The ALRC acknowledges the concerns of some stakeholders with respect to the appropriateness of IFAs in circumstances involving family violence and, by extension, inclusion of material in guidance about negotiating an IFA in such circumstances.[52] However, despite the limitations of IFAs, both generally and in a family violence context, there is nonetheless a need for additional guidance for employees and employers to highlight the fact that IFAs may be negotiated to accommodate the needs of employees experiencing family violence where an employee chooses to negotiate one.[53]
16.43 The FWO has developed Best Practice Guide 03, Use of Individual Flexibility Arrangements.[54] While some stakeholders advocated the development of family violence-specific material,[55] the ALRC recommends that the FWO, in consultation with unions and employer organisations, should include information in the existing guide with respect to negotiating an IFA in circumstances where an employee is experiencing family violence. The guide should include information on IFAs tailored to meet the needs of particular employees experiencing family violence and examples of IFA clauses which can be adapted for these purposes.[56]
16.44 The amendment of the FWO guide should involve consultation with unions and employer organisations, all of whom have a role in ‘promoting and informing employees about their rights to negotiate individual flexibility arrangements in order to ensure equitable access’.[57]
Recommendation 16–3 The Fair Work Ombudsman, in consultation with unions and employer organisations, should include information in Best Practice Guides with respect to negotiating individual flexibility arrangements in circumstances where an employee is experiencing family violence.
Family violence clauses
16.45 A number of stakeholders considered that the inclusion of family violence clauses in enterprise agreements is a ‘positive move to protect the safety and industrial rights of [people] who have experienced family violence, which has resulted in a negative impact on their work entitlements’.[58]
16.46 However, the ALRC does not consider that the Fair Work Act should be amended to mandate the inclusion of family violence clauses. Rather, the ALRC recommends that the Australian Government support the inclusion of family violence clauses which, at a minimum, should contain several basic requirements. Beyond that however, given enterprise agreements are negotiated at an individual workplace level, the inclusion of a family violence clause will necessarily be the product of agreement between the employer and employees (or employee organisations) as to the nature and content of the clause, in light of the specific circumstances of the workplace.[59]
Should family violence clauses be encouraged?
16.47 The ALRC considers that family violence clauses in enterprise agreements are likely to serve an important function and to increase the safety of employees experiencing family violence. Family violence clauses recognise and address the impact of family violence on employees and workplaces, and may provide a flexible way to negotiate workplace responses to family violence, and provide enforceable entitlements.
16.48 There are currently a range of family violence clauses that are either included, or are being negotiated for inclusion, in enterprise agreements around Australia.[60] In 2010, the first family violence clauses were included in the enterprise agreements for Surf Coast Shire and University of New South Wales (UNSW) professional staff. Both agreements were subsequently approved by FWA.[61] The Australian Services Union (ASU) clause was included in the Surf Coast Shire agreement and is reproduced below.[62]
ASU
Victorian Authorities and Services Branch Family Violence Clause
FAMILY VIOLENCE
1 General
Principle
(a) This
Council/shire recognises that employees sometimes face situations of violence
or abuse in their personal life that may affect their attendance or performance
at work. Therefore, the Council/shire is committed to providing support to
staff that experience family violence.
2 Definition
of Family Violence
(a) This
Council/shire accepts the definition of family violence as stipulated in the
Family Violence Protection Act 2008 (Vic). And the definition of family
violence includes physical, sexual, financial, verbal or emotional abuse by a
family member.
3 General Measures
(a) Proof
of family violence may be required and can be in the form an agreed document
issued by the Police Service, a Court, a Doctor, district nurse, maternal and
child health care nurse, a Family Violence Support Service, or Lawyer.
(b) All
personal information concerning family violence will be kept confidential in
line with Council/shire Policy and relevant legislation. No information will be
kept on an employee’s personnel file without their express written permission.
(c) No
adverse action will be taken against an employee if their attendance or
performance at work suffers as a result of experiencing family violence.
(e) The
council/shire will identify a contact in Human Resources who will be trained in
family violence and privacy issues for example training in family violence risk
assessment and risk management. The Council/shire will advertise the name of
the contact within the Council/shire.
(f) An
employee experiencing family violence may raise the issue with their immediate
supervisor or the Human Resources contact. The supervisor may seek advice from
Human Resources if the employee chooses not to see the Human Resources contact.
(g) Where
requested by an employee, the Human Resources contact will liaise with the
employee’s supervisor on the employee’s behalf, and will make a recommendation
on the most appropriate form of support to provide in accordance with sub
clauses 4 and 5.
(h) The
Council/shire will develop guidelines to supplement this clause and which
details the appropriate action to be taken in the event that an employee
reports family violence.
4 Leave
(a) An
employee experiencing family violence will have access to 20 days per year of
paid special leave for medical appointments, legal proceedings and other
activities related to family violence. This leave will be in addition to
existing leave entitlements and may be taken as consecutive or single days or
as a fraction of a day and can be taken without prior approval.
(b) An
employee who supports a person experiencing family violence may take carer’s
leave to accompany them to court, to hospital, or to mind children.
5 Individual
Support
(a) In order to provide support to an employee experiencing
family violence and to provide a safe work environment to all employees, the
Council/shire will approve any reasonable request from an employee experiencing
family violence for:
(i) changes
to their span of hours or pattern or hours and/or shift patterns;
(ii)
job redesign or changes to duties;
(iii)
relocation to suitable employment within the Council/shire;
(iv)
a change to their telephone number or email address to avoid harassing
contact;
(v) any
other appropriate measure including those available under existing provisions
for family friendly and flexible work arrangements.
(b) An
employee experiencing family violence will be referred to the Employee
Assistance Program (EAP) and/or other local resources. The EAP shall include
professionals trained specifically in family violence. An employee that
discloses to HR or their supervisor that they are experienc[ing] family
violence will be given a resource pack of information regarding support
services.
16.49 The UNSW clause is more limited, providing a right to request access to existing sick, carer’s and compassionate leave for family violence-related purposes; flexible working arrangements, including changes to working hours consistent with the needs of the work unit; and changes to work location, telephone number or email address.[63] The clause also states that ‘proof’ of domestic violence may be required in the form of an agreed document issued by the police service, a court, a medical practitioner, a domestic violence support service or lawyer, or a counselling professional.[64]
16.50 While enterprise agreements covering Commonwealth agencies do not currently include family violence clauses, the Government has expressed support for ‘enterprise bargaining on domestic violence clauses in Commonwealth Government agency agreements’.[65]
16.51 Despite their introduction in a number of agreements, there are also a range of concerns about the inclusion of such clauses. On the one hand, stakeholders have expressed concerns about the limited application of enterprise agreements as they do not apply to a large proportion of the Australian workforce and may be insufficient to respond to the needs of employees experiencing family violence. Stakeholders also emphasised that, at times, bargaining items that benefit vulnerable employees, such as family violence clauses, may be excluded from mainstream bargaining processes.[66] Such a conclusion is borne out by academic research on bargaining outcomes: ‘the interests of the majority, based on a male, full-time breadwinner ideal, are often negotiated instead of entitlements which meet women’s industrial needs’.[67]
16.52 On the other hand, employer concerns have mirrored those raised in relation to other statutory or workplace entitlements, in particular with respect to the potential costs to business associated with the inclusion of such clauses.[68]
Should there be basic requirements for a family violence clause?
16.53 While some stakeholders advocated the adoption of the ASU clause, or a model family violence clause, the ALRC acknowledges that ‘one-size does not fit all’.[69] As emphasised by the Australian Chamber of Commerce and Industry (ACCI), ‘these types of clauses are negotiated with employees on a voluntary basis’ and, ‘where an employer agrees to such clauses, it is because it meets the specific needs of its staff, which may not be true for other workplaces’.[70] While such entitlements need to be clear and enforceable, clauses must also be sufficiently flexible to allow businesses to meet their particular needs. As a result, the ALRC does not recommend a ‘model’ family violence clause.
16.54 However, the ALRC considers that family violence clauses should include certain minimum content. Other matters may be more appropriately decided by unions, employer organisations and employees/employers. The ALRC recommends that, at a minimum, family violence clauses should include provisions in relation to:
- when verification of family violence is required and the type of verification;
- confidentiality;
- reporting, roles and responsibilities;
- flexible work arrangements; and
- access to paid leave. [71]
16.55 The form these basic requirements take in family violence clauses in specific enterprise agreements is a matter for negotiation.
Verification of family violence
16.56 To ensure the integrity of a workplace human resources system, where there is access to entitlements under a family violence clause, verification of family violence may be required. As discussed in Chapter 15, employees should be entitled to provide a range of ‘proof’.
Access to paid leave
16.57 In many cases an employee experiencing family violence will quickly exhaust his or her leave entitlements but will require leave, for example, to attend court proceedings or medical appointments. Employers’ provision of additional paid family violence leave is an important component of workplace responses to family violence. However, as stakeholders have emphasised throughout this Inquiry, not all employers are in a position to be able to provide such leave.[72] Consequently, a family violence clause should specify the leave entitlements of an employee experiencing family violence in a particular workplace, whether in the preferred form of additional family violence leave, access to miscellaneous paid leave, or some other form of existing paid leave.
Development of guidance material
16.58 The ALRC suggests that the Australian Government should provide ongoing funding to bodies such as the Australian Domestic and Family Violence Clearinghouse (ADFVC) to continue to improve the knowledge and capacity of unions and employer organisations to support employees experiencing family violence, including through provision of training and resources and the development of family violence clauses appropriate in a range of businesses and industries. The ALRC emphasises the need for guidance material to account for the differing size and resources of businesses, recognising that many businesses are ‘small to medium sized without dedicated human resource professionals’.[73]
16.59 In addition, the ALRC recommends that the FWO should develop a guide to negotiating family violence clauses in enterprise agreements, in consultation with the ADFVC, unions, and employer organisations.[74] The guide should include information about where and how a clause could be included in an enterprise agreement, what it could encompass and how it could interact with existing workplace policies and initiatives.
16.60 To support the effective operation of such clauses, there is a need for a range of complementary education, training and awareness-raising measures and the development of workplace policies and procedures.[75] Importantly, education and training with respect to family violence clauses in enterprise agreements should form part of the national education campaign recommended in Chapter 15.
Recommendation 16–4 The Australian Government should support the inclusion of family violence clauses in enterprise agreements. At a minimum, agreements should:
- include a statement outlining when and what type of verification of family violence may be required;
- ensure the confidentiality of personal information supplied;
- establish lines of communication for employees;
- set out relevant roles and responsibilities of employers and employees;
- provide for flexible working arrangements; and
- provide access to paid leave.
Recommendation 16–5 The Fair Work Ombudsman should develop a guide to negotiating family violence clauses in enterprise agreements, in conjunction with the Australian Domestic and Family Violence Clearinghouse, unions and employer organisations.
[30] ‘Enterprise agreement’ was a term introduced as of 1 January 2010 under the Fair Work Act 2009 (Cth). Previously, under the Workplace Relations Act 1996 (Cth), agreements were referred to as ‘certified agreements’ (until 27 March 2006) and ‘collective agreements’.
[31]Fair Work Act 2009 (Cth) s 171.
[32] Single-enterprise agreements involve a single employer or one or more employers cooperating in what is essentially a single enterprise; multi-enterprise agreements involve two or more employers that are not all single-interest employers; ‘greenfield’ agreements involve a genuinely new enterprise that has not yet employed employees: Ibid s 172.
[33] There are approximately 11.5 million Australian employees, however only approximately 2.6 million Australian employees are covered by an enterprise agreement: Australian Bureau of Statistics, Labour Force, Australia (2011); DEEWR, Trends in Federal Enterprise Bargaining, December Quarter 2010 (2010).
[34] For example, terms about matters pertaining to the relationship between an employer and their employees or employee organisation, as well as deductions from wages and the operation of the agreement: Fair Work Act 2009 (Cth) s 172(1).
[35] For example, terms in relation to individual flexibility and consultation: Ibid ss 202, 205.
[36] For example, terms that are discriminatory. Ibid ss 194, 195, 253.
[37] Ibid s 193.
[38] See, eg, Ibid ch 2, pt 2–4, div 3.
[39] Ibid s 202.
[40] Ibid s 202. Further, particular requirements must be met for an IFA to be enforced, including genuine agreement between the parties and that the employee is better off overall under the IFA: Fair Work Act 2009 (Cth) s 203.
[41] Some
stakeholders have expressed concern about the inclusion of restrictive
flexibility terms in enterprise agreements and the flow-on effect that has on
the usefulness of IFAs: AFEI, Submission
CFV 158; Ai Group, Submission CFV 141.
[42]Fair Work Act 2009 (Cth) ss 202(4), 202(5). See Fair Work Regulations 2009 (Cth) sch 2.2, reg 2.08.
[43] For example, a number of stakeholders have expressed concern about a range of aspects of the operation of IFAs generally: AFEI, Submission CFV 158; Ai Group, Submission CFV 141; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 113; ACTU, Submission CFV 39; ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20; ACCI, Submission CFV 19.
[44] See, eg, Kingsford Legal Centre, Submission CFV 161; CCIWA, Submission CFV 123; Australian Human Rights Commission, Submission CFV 48; Joint submission from Domestic Violence Victoria and others, Submission CFV 22. For example, where a family violence clause is included in an enterprise agreement, in line with Recommendation 16–4, that would supplant the need to negotiate an IFA to deal with circumstances arising from an employee’s experience of family violence.
[45] ACCI, Submission CFV 19.
[46] ADFVC, Submission CFV 26.
[47] ACTU, Submission CFV 39; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20; Redfern Legal Centre, Submission CFV 15; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.
[48] ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20.
[49] Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39; National Network of Working Women’s Centres, Submission CFV 20.
[50] For example, the AHRC submitted that ‘women are less likely than male employees to engage in individual negotiations with an employer’: Australian Human Rights Commission, Submission CFV 48. See also ADFVC, Submission CFV 26.
[51] National Network of Working Women’s Centres, Submission CFV 20; ADFVC, Submission CFV 26.
[52] ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 113.
[53] Australian Human Rights Commission, Submission CFV 48; ACCI, Submission CFV 19; Women’s Health Victoria, Submission CFV 11; ADFVC, Submission CFV 26.
[54] Fair Work Ombudsman, Best Practice Guide: Use of Individual Flexibility Arrangements.
[55] ADFVC, Submission CFV 26.
[56] The inclusion of sample IFAs was supported by Women’s Health Victoria, Submission CFV 11.
[57] Joint submission from Domestic Violence Victoria and others, Submission CFV 22.
[58] National Network of Working Women’s Centres, Submission CFV 20. See also: Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; National Network of Working Women’s Centres, Submission CFV 20; Redfern Legal Centre, Submission CFV 15; WEAVE, Submission CFV 14; Women’s Health Victoria, Submission CFV 11; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.
[59] A range of stakeholders supported the inclusion of family violence clauses on this basis: ACTU, Submission CFV 39; ACCI, Submission CFV 19.
[60] Family violence clauses have been included in: Thoroughbred Racing SA Ltd Barrier Staff/AWU, Enterprise Agreement 2011; University of New South Wales (Professional Staff), Enterprise Agreement 2010; Surf Coast Shire, Enterprise Agreement 2010–2013; TransGrid Employees Agreement 2010 (NSW); Brimbank City Council Enterprise Agreement 6 2010 (Vic); Moyne Shire Council Enterprise Bargaining Agreement No 6 2010 (Vic). They have been logged in: The City of Greater Geelong; St Luke’s Family Services Bendigo; Coliban Water Victoria; Health and Community Services Victoria; and the NSW State Government including the Transport Accident Commission. The Maritime Union of Australia is trialling clauses with DP World Stevedores: ADFVC, Domestic Violence and Workplace Rights and Entitlements Project <www.austdvclearinghouse.unsw.edu.au/workplace_whats_new.htm> at 28 July 2011.
[61] An enterprise agreement only comes into operation after approval by FWA: Fair Work Act 2009 (Cth) s 54. In addition to ensuring several pre-approval steps have been undertaken by the employer, FWA must be satisfied as to a number of things, including that certain content requirements are met, there are no unlawful terms and that the agreement passes the ‘better off overall’ test: See Fair Work Act 2009 (Cth) ss 186–188, 193, 196–200.
[62] Surf Coast Shire, Enterprise Agreement 2010–2013.
[63] University of New South Wales (Professional Staff), Enterprise Agreement 2010.
[64] Ibid.
[65] G Marcus, ‘Interview with Hon Kate Ellis, Federal Minister for Status of Women’ (2011) 44 Australian Domestic and Family Violence Clearinghouse Newsletter 12.
[66] Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39.
[67] Australian Human Rights Commission, Submission CFV 48.
[68] See, eg, AFEI, Submission CFV 158; Ai Group, Submission CFV 141; ACCI, Submission CFV 128; ACCI, Submission CFV 19.
[69] ACCI, Submission CFV 19.
[70] Ibid.
[71] A range of stakeholders supported these requirements: ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; National Network of Working Women’s Centres, Submission CFV 20; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.
[72] See, eg, Ai Group, Submission CFV 141; ACCI, Submission CFV 19.
[73] ACCI, Submission CFV 128.
[74] Suggested by Australian Human Rights Commission, Submission CFV 48 and supported by Women’s Health Victoria, Submission CFV 133; ADFVC, Submission CFV 124; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 113; Business SA, Submission CFV 98; ACCI, Submission CFV 19.
[75] Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39; ACCI, Submission CFV 19; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission
CFV 10.