Family violence—a work health and safety issue?

18.24 Throughout this Inquiry it has become apparent that more needs to be done to ensure that employees and employers understand the magnitude of the possible risk family violence and its impact pose as a work health and safety issue.

18.25 A key question underlying this area relates to the point at which family violence may become an OHS issue in the workplace, as opposed to a ‘private’ issue, or one which is more appropriately dealt with by other laws, for example where the conduct may be an offence under criminal laws. According to the National Network of Working Women’s Centres (NNWWC):

Unfortunately, instances where family violence has intruded into the workplace in our experience are not dealt with well, are seen as ‘private matters’ and too often result in serious injury or death, often witnessed by workmates.^[29]

18.26 By way of illustration, Ontario’s Health and Safety Guidelines provide an example of how family violence may be identified as a potential source of workplace violence. These guidelines include ‘domestic violence’ as a ‘key concept’, recognising:

A person who has a personal relationship with a worker—such as a spouse or former spouse, current or former intimate partner or a family member—may physically harm, or attempt or threaten to physically harm, that worker at work. In these situations, domestic violence is considered workplace violence.^[30]

18.27 Ultimately, the ALRC has formed the view that family violence may, in some cases, pose a risk to the physical and psychological health and safety, not only of employees who are victims of the violence, but also of co-workers and other third parties.

The legislative duty of care

18.28 There are a range of duties owed by both employers and employees under the Model Act.^[31] Of particular relevance is the duty of care owed by employers, employees and third parties.^[32] Importantly, the Model Act ‘establishes a regime of responsibilities and obligations owed by duty holders which is commensurate with their ability to influence safety outcomes’.^[33]

What is an employer’s duty of care with respect to family violence?

18.29 The Model Act provides a primary duty of care under which a PCBU must ensure, so far as is reasonably practicable:

• the health and safety of workers engaged, or caused to be engaged by the person and whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking;
• the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking;
• the provision and maintenance of a work environment without risks to health and safety; and
• a range of other requirements, including to provide information and training to protect all persons from risks to their health and safety; monitoring of the health of workers for the purposes of preventing illness or injury arising from the conduct of the business or undertaking^[34] and a duty to consult.^[35]

18.30 As outlined above, the Model Act provides that the primary duty holder is a PCBU and expands the class of persons to whom a duty is owed to ‘workers’, including among others, employees, subcontractors, outworkers, apprentices, students and volunteers.^[36] Under this general duty, primary duty holders must take ‘reasonable precautions to prevent workplace related harm to workers and the public, including the possibility of harm to employees from nonemployees’,^[37] which the ALRC suggests includes partners, ex partners and other family members who may use family violence against an employee.

18.31 Moreover, the primary duty of care is not limited to the workplace. Rather, the laws apply to work activities wherever they occur and so apply ‘as much to the home as they do to the workplace’.^[38]

18.32 With respect to the qualifier of ‘reasonably practicable’, the Explanatory Memorandum to the Model Act explains that ‘the standard of reasonably practicable has been generally accepted for many decades as an appropriate qualifier of the duties of care in most Australian jurisdictions’.^[39] It requires an employer to do what can reasonably be done in the circumstances, considering:

• the likelihood of the hazard or risk occurring;
• the degree of harm that might result;
• what the person knew, or ought to have known, about the hazard or risk and ways of eliminating or minimising it;
• the availability and suitability of ways to eliminate or minimise the hazard or risk; and
• the associated costs.^[40]

Circumstances in which a duty arises

18.33 Throughout this Inquiry, stakeholders have expressed a divergence of views about the circumstances in which family violence may give rise to a duty of care under the Model Act, if at all.

18.34 At the outset it is important to note that, in instances of criminal acts, such acts are the responsibility of law enforcement authorities and reporting and responses should be tailored accordingly.

18.35 Safe Work Australia emphasised that, while recognising family violence may ‘impact on the workplace, it is not a risk that arises from the conduct of a business or undertaking or work itself’ and is therefore ‘beyond the scope’ of the model work health and safety laws.^[41] It also expressed the view that duties in relation to workplace violence generally are limited to reasonably foreseeable risks which arise ‘due to the nature of the work, like as in the services sector, banking and cash handling, policing’.^[42]

18.36 However, numerous stakeholders have expressed the view that, in some circumstances, family violence may be an OHS issue.^[43] The ALRC considers that in some circumstances, where family violence-related incidents occur in the workplace and affect the health and safety of workers in that workplace, that PCBUs may well owe a primary duty of care.

18.37 The analogy with other forms of workplace violence is a useful one. A PCBU owes a duty to ensure, so far as is reasonably practicable, the health and safety of workers and provision of a safe working environment, which encompasses the potential risk posed by internal, external or client-initiated violence. The existence of a worker’s intimate relationship does not alter that duty. In addition, in light of evidence which suggests that two thirds of Australian women who report violence by a current partner are in paid employment,^[44] it may be considered reasonably foreseeable that family violence will have an impact on the workplace, and that some such impact may involve concerns for safety, particularly if that violence comes into the workplace.

18.38 As a result, the ALRC considers that circumstances in which family violence may pose a clear OHS issue or risk include:

• physical or verbal abuse between partners employed at the same workplace;
• threats to a partner or the partner’s co-workers at the workplace;
• harassment or attacks on a partner or a partner’s co-workers at their workplace, either in person or through phone calls and emails;
• stalking a partner at the partner’s workplace—for example, 29% of victims who were stalked by their previous partner reported that the person using family violence loitered outside their workplace;^[45] and
• in the most extreme cases, family violence-related homicide at the workplace.^[46]

18.39 While the ALRC considers that the above circumstances are ones in which a PCBU owes a primary duty of care, throughout this Inquiry the ALRC has heard that in many cases, employers are not aware of the breadth of their duty of care, nor do they consider the risks associated with family violence to be a work issue, or if they do they are unsure what steps they are reasonably required to take to fulfill their primary duty of care. This is likely to be compounded from 1 January 2012 as a result of the expanded definitions and concepts of PCBU, worker and workplace under the Model Act. Accordingly, the ALRC makes a range of recommendations in relation to the need for guidance, education, training and appropriate employer responses in relation to these circumstances later in this chapter.

Circumstances where it is unclear whether a duty exists

18.40 However, there are some instances involving family violence where no duty is owed, or where it is unclear whether a PCBU owes a duty of care. For example, the definition of ‘workplace’ under the Model Act as any place where work is carried out or where a worker goes, or is likely to be, while at work, significantly expands OHS duties.^[47] In the context of family violence, it does so in a way possibly not envisaged, raising difficult and previously unconsidered questions with respect to the extent of duties where family violence exists. For example, if a worker who is experiencing family violence is working from home and in the course of undertaking that work is threatened or physically or verbally abused, does this come within the duty of care owed by a PCBU?

18.41 Some stakeholders submitted that family violence may also pose an OHS risk, analogous to the risk posed by other psychosocial hazards.^[48] As one commentator has noted, ‘the broad formulation of the general duty provisions clearly covers hazards hitherto unregulated, such as ergonomic and psychosocial hazards’.^[49] It is unclear whether, by extension, where family violence causes employees to be distracted or inattentive, leading to reduced ability to operate equipment safely or concentrate on tasks and increasing the risk of accidents, it is likely to engage an employer’s duty of care. There are a range of issues yet to be included under the OHS ‘umbrella’ and this particular iteration of family violence may be one such issue which is not yet the subject of legislation, Codes of Practice or guidelines,^[50] and therefore warrants further consideration.

18.42 Accordingly, in relation to these types of circumstances, the ALRC recommends that Safe Work Australia, among others, should examine the effect of the harmonised OHS regime on duties and obligations owed in relation to family violence as a possible work health and safety issue.

18.43 Finally, while the ALRC does not recommend the inclusion of a specific duty of care with respect to family violence in this Report, some stakeholders supported such a move, suggesting that it would ensure that duty holders were required to take appropriate action in all cases where they ‘become aware (or ought to be reasonably aware) of family violence that could be a risk to a worker in the workplace’.^[51] It may be instructive for Safe Work Australia in the course of its examination of the duties of care to consider, by way of comparison, a family violence provision introduced in Ontario.^[52] The Occupational Health and Safety Act 1990 RSO c 01 (Ontario) provides:

Domestic violence

32.0.4 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, the employer shall take every precaution reasonable in the circumstances for the protection of the worker …

Duties re violence

32.0.5 (1) For greater certainty, the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28 apply, as appropriate, with respect to workplace violence …^[53]

What is an employee’s duty of care?

18.44 Workers also have a primary duty to take reasonable care for their own safety at work and that their own acts or omissions do not adversely affect the health and safety of other persons.^[54] The inclusion of this duty under the Model Act acknowledges the changing way work is performed, as many employees have greater independence and control over the condition of their work, and recognises the role employees play in risk identification and creating a safe work environment. These duties to take reasonable care also apply to a person at a workplace.^[55]

18.45 In consultations, Safe Work Australia emphasised that it would be difficult for an employer to take steps where a worker has not disclosed the existence of, or the risk posed by, family violence.^[56] While workers may have legitimate reasons for not wishing to disclose family violence, they also need to be aware of their duties to take reasonable care for their own health and safety and to ensure that family violence does not adversely impact on others. Accordingly, the ALRC makes a range of recommendations in relation to the need for guidance, education and training that are likely to assist employees experiencing family violence to fulfil their duties under the Model Act. The ALRC suggests that Safe Work Australia should give further consideration to the circumstances in which an employee experiencing family violence has a duty to disclose that violence to their employer for the purposes of fulfilling their own duty of care, and if they do not, firstly, whether that constitutes a breach of their duty and secondly, how it affects the employer’s duty.