Codes of Practice and other guidance

18.61 Throughout this Inquiry it has become clear that there is a need for increased recognition and understanding that family violence may constitute a work health and safety issue. However, there is a need to make out a duty before guidance is relevant, therefore in this Report the ALRC suggests that such guidance is only relevant in relation to those instances of family violence where there is a clear duty of care.^[82]

18.62 Discussion of family violence in a Code of Practice or guidance would not necessarily change employers’ legal obligations. However, explicit recognition that family violence can affect the workplace could raise both employers’ and employees’ awareness of family violence as a potential work health and safety issue and provide useful guidance to employers on how to respond appropriately.

18.63 There are a range of mechanisms through which greater recognition and understanding could be achieved. The development of guidance, whether in the form of a Code of Practice, or other forms, builds upon general education, training and measures aimed at increasing the visibility and understanding of family violence as an OHS issue discussed later in the chapter. In this section of the chapter the ALRC considers:

• the appropriate type of guidance about family violence as an OHS issue, with a particular focus on Codes of Practice; and
• the substance of such guidance, including defining family violence as an OHS issue and identifying and responding to family violence in this context.

What form should guidance take?

18.64 In addition to OHS legislation, there is a range of guidance provided to employers and employees about OHS matters in the form of regulations, Codes of Practice and other material produced by Safe Work Australia, Comcare and similar bodies. While stakeholders supported the provision of some form of additional guidance with respect to family violence as an OHS issue, they were divided as to where this additional guidance should be provided in: OHS legislation, Codes of Practice, or in other forms.^[83] The ALRC has formed the view that the inclusion of information on family violence as a possible work health and safety issue should, at a minimum, be included in Codes of Practice and that other guidance may also play a role.

Codes of Practice

18.65 Codes of Practice provide practical guidance on safe work practices and risk management. While Codes of Practice do not impose mandatory legal obligations, they are admissible in evidence before a court as proof of the standards of health and safety that should be achieved by a duty holder to comply with the relevant legislation and regulations. More importantly, the OHS Code, for example, if relied on as evidence in legal proceedings, reverses the burden of proof to the duty holder. Accordingly, where the Code of Practice has not been followed, the duty holder would be required to prove that they complied with their duties by other means (equivalent to or better than the Code of Practice).^[84]

18.66 Guidance provided by way of a Code of Practice appears to strike the balance between ensuring employers are aware of the health and safety standards expected of them, while still allowing individual employers sufficient flexibility to tailor their responses according to the nature of the business or enterprise. Most stakeholders who considered this issue suggested that Codes of Practice were the most appropriate place to include consideration of family violence as an OHS issue,^[85] as they provide an ‘important touchstone for duty holders’.^[86]

18.67 However, neither the OHS Code nor any of the Model Codes of Practice developed by Safe Work Australia identify or consider responses to family violence as a potential OHS risk. In its submission to this Inquiry, Safe Work Australia stated that ‘as family violence is not a risk that arises from work, it … cannot be included as a specific work health and safety issue in the model codes’.^[87] The Safe Work Australia Agency Budget Statement indicates that one of the focuses of Safe Work Australia in 2011–2012 will be on the continued development of model Codes of Practice and national guidance material.^[88] The ALRC understands that several of the Codes of Practice are considered complete, however notes that Safe Work Australia’s responsibility with respect to such Codes includes to ‘if necessary, revise them’.^[89]

18.68 Consequently, the ALRC considers that the inclusion of information on family violence as a possible work health and safety issue should, at a minimum, be included in Codes of Practice. While some stakeholders suggested that bodies such as Safe Work Australia and the ADFVC could collaborate to create a specific Code of Practice for family violence-related workplace safety risks, others emphasised that information should be included in general Codes, such as those in relation to risk assessment, workplace violence or psychosocial hazards, ‘rather than creating a further Code of Practice specifically on domestic/family violence related risks’.^[90] In particular, the ALRC is of the view that the most appropriate Codes in which to include such information are: ‘How to Manage Work Health and Safety Risks’; ‘How to Consult on Work Health and Safety’; ‘Managing the Work Environment and Facilities’; and ‘Preventing and Responding to Workplace Bullying’.^[91]

Regulations

18.69 The OHS Regulations 1991 and OHS Regulations 1994 do not address any type of violence as a health and safety risk, although the OHS Regulations 1994 address the general topic of hazard identification and risk assessment. Similarly, the Model Regulations do not address violence. The role of these regulations is to set out mandatory obligations on specific matters and provide processes or outcomes that duty holders must follow or achieve to meet their general duties under legislation.

18.70 Stakeholders such as the ACTU suggested that family violence should be within the scope of matters addressed by regulation, and that Codes of Practice and guidance material should provide detail with respect to the duties that arise.^[92] However in light of contrasting stakeholder views, and to the extent that the OHS Regulations set out mandatory obligations and provide detail with respect to meeting general legislative duties, the ALRC does not consider it is necessary to amend the OHS Regulations to protect the safety of victims of family violence.

Other guidance

18.71 Throughout this Inquiry stakeholders have outlined a range of other possible responses to family violence in an OHS context, many of which involve inclusion of information in guidance or the development of parallel policies and procedures.^[93]

18.72 Several stakeholders supported the development of an overarching workplace family violence policy which encompassed OHS.^[94] In addition to this, however, stakeholders including the Australian Services Union supported the development of stand-alone guidance material that ‘specifically deals with the implications of family violence in the workplace and an employer’s obligations in relation to protecting their employees from manifestations of family violence at the workplace’.^[95]

18.73 However, the ALRC considers that incorporating consideration of family violence into existing policies, risk assessment frameworks and documents as well as safety plans^[96] is the preferable approach. As a result, the ALRC suggests that ‘auditing existing policies, examining values and mission statements, and considering the effects of organisational culture,’^[97] as well as developing new policies and procedures, as required, may also go some way to increasing the safety of employees experiencing family violence as well as their co-workers and the workplace more generally.

18.74 In addition, Safe Work Australia has developed Interpretative Guidelines to assist in the interpretation and application of the Model Act.^[98] As a result, the ALRC suggests that, in the course of examining duties and obligations, and what constitutes ‘reasonably practicable’ in the context of family violence as a possible work health and safety issue arising under the harmonised legislative and regulatory OHS scheme, Safe Work Australia should consider inclusion of guidance on the matter in Interpretive Guidelines.

18.75 Finally, the ALRC recognises the important role played by other forms of guidance material and suggests that bodies such as Safe Work Australia, Comcare, and others involved in the national education and awareness campaign in Recommendation 15–1 could be involved in the provision of additional guidance.

Substance of guidance

18.76 There are a range of issues that Codes of Practice or other guidance material could cover in attempting to explain, and raise awareness about, family violence and its impact as a work health and safety issue. In addition to general information about the nature, features and dynamics of family violence, such guidance should ultimately assist employers and employees to identify, and respond to, family violence where it presents in the work context. The ALRC considers that Codes of Practice should include:

• a definition of family violence—in line with that suggested in Chapter 3;
• information about the nature, features and dynamics of family violence;
• possible ways to identify family violence in a work context;
• responsibilities and obligations of employers and employees;
• examples of how family violence may constitute a work health and safety risk; and
• possible employer and workplace responses to the risk posed by family violence.

Identifying family violence

18.77 Employers should not be required to conduct potentially intrusive examinations into their employees’ private lives, nor should they be allowed to ignore their responsibilities for the health and safety of their employees. Such a balance may already be implicit in relevant legislation, but more explicit discussion in the context of workplace risks posed by family violence may be helpful.

18.78 As outlined above, in fulfilling their duty of care, employers must consider what is ‘reasonably practicable’.^[99] This involves considering a range of matters including the likelihood of the hazard/risk; the degree of harm; and knowledge, availability and suitability of ways to eliminate or minimise the hazard or risk.^[100] The ALRC considers that guidance could be included in material such as the Interpretative Guidelines, in order to assist employer to put in place measures to ensure they are able to identify family violence in the workplace.^[101] Models from state codes of practice and other jurisdictions—in particular, recent legislation and accompanying guidelines from Ontario, Canada—provide examples of what subjects such guidance could discuss. The inclusion of such guidance is likely to be particularly important under the Model Act, given the expanded range of potential ‘workplaces’. However, guidance should make clear the distinction between work-related and personal responsibilities.

18.79 The approach in the Ontario Occupational Health and Safety Act does not require employers to assess the risk of family violence occurring in the workplace, instead it requires that an employer take precautions only if an employer ‘becomes aware, or ought reasonably to be aware that domestic violence that would likely expose a worker to physical injury may occur in the workplace’.^[102] The ALRC suggests that this formulation may strike a useful balance in an area where it is difficult to distinguish clearly between workplace and personal responsibilities.

18.80 In identifying family violence in the workplace, the ALRC also considers that suggestions from existing Codes of Practice discussing bullying, psychosocial hazards, and general violence may be of assistance, outlining approaches including:

• reviewing absenteeism records;
• checking injury records;
• conducting confidential surveys to identify possible sources of violence; and
• encouraging workers to communicate about workplace violence.^[103]

18.81 In light of the expanded concept of workplace under the Model Act, with no place of work restriction, employers may require specific guidance on identifying family violence in non-traditional workplace settings where work is conducted.

Responding to family violence

18.82 In order to ensure effective reporting and responses to family violence in an OHS context, both employers and employees have an important role to play. However, at the outset, it is important to note that ‘whilst businesses can play a role in ensuring its workforce isn’t exposed to internal or external sources of harm’,^[104] in instances of criminal acts such acts are the responsibility of law enforcement authorities and reporting and responses should be tailored accordingly.

18.83 The ALRC acknowledges the need for workplace responses that are tailored to meet the individual needs of businesses, and of employees within those businesses. In order for employers to be prepared to address the risks associated with family violence in the work context, they must be aware that an employee is experiencing family violence that is likely to result in an OHS hazard or incident.^[105] As a result, a precondition for responding appropriately is to ensure adequate structures are in place for disclosure and reporting of family violence.^[106] Such structures also assist in establishing and encouraging a reporting and safety culture.^[107] Women’s Health Victoria highlighted the importance of leadership in this respect, commenting that ‘organisational leaders can set the tone for a workplace culture that is safe, respectful and supportive—one that sends an unambiguous message that family violence is not tolerated’.^[108]

18.84 However, in instances where family violence clearly engages a primary duty of care and is an OHS issue, workplace responses can build on existing measures associated with risk management and safety plans such as those ‘adopted in relation to customer service staff (who often deal with abusive customers) or other workers at risk of harm or violence’.^[109]

18.85 In responding to family violence, a model employer response should include several components, including legal compliance, policies and procedures, victim safety and support, and education and training and the overarching need to ‘recognise, respond and refer’.^[110]

18.86 Guidance may usefully provide information about how employers should respond to and minimise risks associated with family violence and its affect on the workplace. This is in line with the objects of OHS legislation to assist observance with obligations and ultimately to protect the safety of workers to the highest level reasonably practicable.

18.87 In some cases, employers will already have mechanisms and processes in place that can be utilised to minimise the risk posed by family violence in the work context. Employer and workplace approaches and responses can be multifaceted and there is no ‘one size fits all’. However, risk assessment frameworks and safety plans have emerged as the key way in which employers can respond to the risk posed by family violence as a possible OHS issue. This section of the chapter considers general responses as well as providing some discussion of the ways in which safety plans can be used by employers, and outlines what such plans could include.

18.88 The ALRC considers that the risk assessment components currently contained in the Model Codes of Practice could be amended to account for the risk posed by family violence. This may assist workplaces to integrate good risk management practices in relation to family violence into day-to-day business operations. In doing so, the Model Act requires employers to consult workers in relation to the identification of hazards and assessment of risks as well as decisions made to eliminate such risks.^[111]

Safety plans

18.89 A key element of effective risk management emphasised by stakeholders is the development and implementation of general and individual safety plans tailored to the individual business and needs of employees experiencing family violence.^[112] The ALRC considers that Safe Work Australia should work with the ADFVC, unions and employer organisations to develop safety plans to be incorporated into guidance material which includes measures to minimise the risk of family violence in the workplace.^[113] It is necessary to recognise the need for flexible safety plans to suit businesses of varying sizes across a range of industries.^[114]

18.90 The ALRC considers that the involvement of unions and employer organisations is important and in line with the object of the framework created by the Model Act to encourage unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices and assisting employers and employees to achieve healthier and safer working environments.

18.91 As part of the Domestic Violence Workplace Rights and Entitlements Project, the ADFVC has developed resources designed to assist employers in assessing and responding to risks in the workplace, associated with family violence. These resources include a draft workplace guide to developing an effective safety plan. The guide allows employers to tailor the safety plan to the specific working environment and business needs and includes a range of tips in developing a safety plan. Such plans could be developed to work with, or be incorporated into, existing safety plans. The guide also emphasises that workers should be involved in the development of the plan. The guide includes a number of steps which should be taken to assess the workplace and develop the safety plan as well as suggested actions to support safety in relation to each step, including:

Step 1: Assess the nature of the workplace

Every workplace is different. Safety plans need to reflect the general safety measures that can be introduced as well as the specific plans tailored to the needs of individual staff who disclose, according to the nature of the workplace and the work patterns of individuals. Is work office based, retail, service industry, or manufacturing? Do rosters expose staff to potentially hazardous times, such as late at night, early in the morning or at very quiet times of day? Do staff work alone, off site, or beyond mobile range?

Step 2: Assess the workplace for security

Is public access to the workplace restricted? Are security guards on site? Are employees working in remote or isolated locations within the building? Is car parking safe?

Step 3: When an employee discloses

A tailored plan to protect the employee needs to be developed with [his or] her and with [his or] her consent. The plan needs to reflect her work patterns. Does the employee work at times of greater vulnerability to harassment or attack Does [he or] she work alone? Is she required to work outside the workplace? Is [he or] she within mobile range? How does [he or] she get to and from work? Note that high risk times for exposure to acts of domestic violence are during pregnancy and post-separation. Increase vigilance and support during these times.

Step 4: Assess with the vulnerable staff member, the use of appropriate screening measures

The most common form of domestic violence that employees report experiencing at work is abusive phone calls. How can you prevent the abuser gaining access to the vulnerable staff member? How can this be done without affecting the work performance of the employee? Can you collect evidence of stalking and harassment so that police can follow up concerns? Is there a domestic violence court protection order in place so that you can report breaches? Are you aware of escalating risk?

Step 5: Assess the capacity of the workplace to respond to emergencies

Are you prepared for a crisis situation?

Step 6: Assess the need for a safe area

This is a place where someone under threat can retreat to escape the violence. It may be a room, an enclosed outdoor area or an adjoining business.^[115]

18.92 In addition, Women’s Health Victoria suggested other issues to consider when drafting a safety plan include considering changes to work schedule, location or telephone number; developing a return to work place if absence is agreed to; provision of emergency contact details; obtaining an apprehended violence order that includes the workplace; and reviewing workplace safety arrangements.^[116]