General protections

16.74 Some victims of family violence are subject to discrimination and adverse treatment in the workplace as a result of their experiences of family violence.^[102] Current general protections provisions under the Fair Work Act offer limited protection in such circumstances.

16.75 Whether family violence should be included as a separate ground of discrimination under the Fair Work Act should be considered in the context of anti-discrimination law more generally. However, the question of whether family violence should be included as a separate ground of discrimination under anti-discrimination laws falls outside the Terms of Reference for this Inquiry. The ALRC nevertheless recommends that the AHRC examine the possible basis upon which status as an actual or perceived victim of family violence should be included as a protected attribute under Commonwealth anti-discrimination law in the future. The ALRC also suggests that possible inclusion in the Fair Work Act be considered once any new ground is included in anti-discrimination legislation.

Overview of the provisions

16.76 Under the Fair Work Act, national system employees are entitled to a range of general workplace protections.^[103] Specifically, the Act protects workplace rights and the exercise of those rights, freedom of association and involvement in lawful industrial activities, and provides other protections, including protection from discrimination.^[104] Part 3–1 of the Fair Work Act contains these general protections which, among other things, prohibit an employer from taking ‘adverse action’^[105] against an employee or prospective employee on the basis of the employee having, exercising or not exercising, or proposing to exercise or not exercise, a ‘workplace right’, or to prevent the exercise of a ‘workplace right’.^[106]

16.77 It is important to note that where, for example, family violence clauses are included in enterprise agreements, or other family violence-related entitlements are included under workplace laws or instruments, this necessarily expands the workplace rights upon which an adverse action claim under Part 3–1 could be based.

Discrimination

Are the current provisions sufficient?

16.78 Employees experiencing family violence may be ‘subject to direct and indirect adverse treatment in the workplace, as a result of their experience’ of family violence.^[107] Stakeholders such as the AHRC submitted that ‘most commonly the adverse treatment manifests as being denied access to leave, flexible work arrangements or their employment being terminated’.^[108]

16.79 However, employees experiencing family violence may face difficulties in relying on the protected attributes articulated in s 351(1) of the Fair Work Act, which prohibits specific forms of ‘adverse action’ being taken for discriminatory reasons:^[109]

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.^[110]

16.80 In many cases, it is difficult for a person experiencing family violence to prove a ‘causal nexus between the discrimination and an attribute that is currently covered’ by the Fair Work Act, for example family responsibilities, disability or sex.^[111] By way of example, the AHRC noted that

an individual who is discriminated against because she or he requires time off work to attend court or to relocate to escape violence may be unable to make a claim under any ground covered by the FWA.^[112]

16.81 The National Network of Working Women’s Centres illustrated the limited protection afforded by the current provisions through a case study.^[113]

16.82 In addition, where a person experiencing family violence is able to establish a claim under the existing attributes, where the focus is moved from family violence itself to disability, Victoria Legal Aid has suggested that this may ‘compound feelings of powerlessness’.^[114]

16.83 Conversely, stakeholders such as ACCI expressed the view that the existing general protections provisions ‘do provide appropriate protections for employees’.^[115]

A new ground of discrimination?

Anti-discrimination legislation

16.84 Some stakeholders considered that family violence should be included as a protected attribute under Commonwealth, state and territory anti-discrimination legislation as a precondition to including family violence as a ground under the general protections provisions of the Fair Work Act.^[116]

16.85 The Australian Government is currently consolidating and harmonising Commonwealth anti-discrimination laws, as well as considering the inclusion of new grounds of discrimination.^[117] In September 2011, the Attorney-General released a Discussion Paper which, among other things, noted that initial submissions in relation to the consolidation supported the inclusion of ‘domestic violence victim status’ or ‘victim or survivor of domestic violence’ as a protected attribute particularly in the areas of employment and accommodation.^[118] Submissions in response to the Discussion Paper close on 1 February 2012.^[119]

16.86 The question of whether family violence should be included as a protected attribute under anti-discrimination laws is considered beyond the Terms of Reference for this Inquiry. However, the ALRC is aware of the role played by the AHRC in informing the consolidation process, and in providing an evidence base upon which the Government can consider the inclusion of new grounds. As a result, the ALRC recommends that the AHRC, in consultation with relevant stakeholders, should examine the possible basis upon which status as an actual or perceived victim of family violence should be included as a protected attribute under Commonwealth anti-discrimination law.

16.87 It is instructive to note that several overseas jurisdictions have enacted legislation that prohibits employers from terminating an employee’s employment or otherwise discriminating against them where the employee is, or is perceived to be, a victim of family violence, or where they take time off work, for example, to testify in a criminal proceeding, seek a protection order or seek medical attention related to experiences of family violence.^[120] Stakeholders such as Victoria Legal Aid and the ADFVC suggested that ‘Australia should follow international best practice in this area’.^[121]

Fair Work Act

16.88 Essentially, it should not be necessary for people experiencing family violence to ‘engage in complex legal analysis to demonstrate discrimination’ under the existing grounds.^[122] However, the general protections provisions under the Fair Work Act do not operate in isolation and are designed to complement, and are necessarily linked to, Commonwealth, state and territory anti-discrimination legislation. As a result, the ALRC considers that including family violence as a ground under the Fair Work Act should be considered, following its inclusion under Commonwealth, state and territory anti-discrimination law.

16.89 Without amendments to anti-discrimination legislation, there are a range of difficulties associated with including family violence as a ground of discrimination under ss 351(1) and 772(1)(f) of the Fair Work Act—primarily in relation to how any such ground would be formulated, and the interpretation and operation of s 351(2).

16.90 There are differing views on the meaning and effect of s 351(2) in the context of proposed amendments to s 351(1). Some stakeholders expressed the view that the protection does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken. In that case, in order for family violence to be included as a separate ground under s 351(1) of the Fair Work Act, it would also need to be incorporated under federal, state or territory anti-discrimination laws; or s 351(2) would need to be amended to remove the requirement that the action also be unlawful under anti-discrimination law.^[123] The other view expressed, with some support from the Explanatory Memorandum to the Fair Work Bill 2008, is that s 351(2) covers action which is covered by federal, state or territory anti-discrimination law but is not unlawful because an exemption or defence applies under that law:

On this view, the prohibition on adverse action contained in the FWA will not apply where an action that would otherwise be unlawful under an anti-discrimination law falls within an existing exemption or defence, making it ‘not unlawful’.^[124]

16.91 Despite these difficulties, the insertion of family violence into ss 351(1) and 772(1)(f) of the Fair Work Act as a separate ground of discrimination received widespread support from stakeholders.^[125] Some submitted that the inclusion would ‘align with the objects of the Fair Work Act and would provide a significant safeguard to victims of family violence and support their capacity to remain in employment’.^[126] In addition, submissions highlighted that the inclusion would be likely to provide additional compliance incentives for employers, including in light of: the FWO’s role in investigating discrimination;^[127] the applicability of civil penalty provisions;^[128] and the availability of injunctions to prevent adverse action or unlawful termination.^[129]

Temporary absence due to illness or injury

16.92 Under ss 352 and 772(1) of the Fair Work Act,employees experiencing family violence who have their employment terminated while they are absent from work as a result of a family violence-related illness or injury are entitled to make an application to FWA to deal with a general protections or unlawful termination dispute.^[130]

16.93 A prescribed illness or injury exists if the employee:

• provides a doctor’s certificate or statutory declaration for the illness or injury within 24 hours, or within a reasonable period in the circumstances; or
• is required by the terms of a workplace instrument to notify their employer of an absence from work and to substantiate the reason for the absence, and has complied with those terms; or
• has provided the employer with evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97 of the Fair Work Act for the taking of paid personal/carer’s leave for a personal illness or injury.^[131]

16.94 An illness or injury is not a prescribed kind of illness or injury if:

• the employee’s absence extends for more than three months, or the total absences of the employee amount to more than three months within a 12-month period; and
• the employee is not on paid personal/carer’s leave for a purpose mentioned in s 97(1) of the Fair Work Act for the duration of the absence.^[132]

16.95 The temporary absence provisions under ss 352 and 772(1)(a) of the Fair Work Act only apply in situations involving termination of employment and are both civil remedy provisions.

16.96 For the purposes of the temporary absence provisions, the type of evidence an employee may provide to substantiate the reason for their absence includes: a medical certificate; statutory declaration; and other forms of evidence that would satisfy a reasonable person that the leave is taken for the reasons requested or specified. As a result, where an employee is temporarily absent from work due to a family violence-related illness or injury, the evidentiary requirements appear to be sufficiently broad to ensure that victims of family violence could provide satisfactory evidence of their family violence-related illness or injury.

16.97 If the circumstances under which an employee can access personal/carer’s leave under the NES are extended, or additional family violence leave is included, the Fair Work Regulations may need to be amended, either to expand the meaning of prescribed illness or injury, or to add an additional provision. Such amendment would be necessary to provide protection to employees experiencing family violence who have their employment terminated while they are temporarily absent from work as a result of a family violence. The ALRC considers that the Australian Government may need to consider this issue in due course.