Submission to the Fair Work Act Review Panel

The Australian Law Reform Commission (ALRC) welcomes the opportunity to make this submission to the Fair Work Act Review Panel on the Fair Work Act 2009 (Cth). This submission draws heavily on the experience and findings in the ALRC’s Inquiry into Commonwealth laws and family violence. That Inquiry (the ‘Commonwealth Family Violence Inquiry’) culminated in the production of the report, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117, 2011), including 102 recommendations for reform.

This submission is divided into sections, with paragraphs numbered in each section, to facilitate ease of reference for the Review Panel.

1. Commonwealth Family Violence Inquiry

1.1 In the Commonwealth Family Violence Inquiry, the ALRC’s Terms of Reference required consideration of the treatment of family violence in Commonwealth laws, and the identification of improvements that could be made to relevant legal frameworks to protect the safety of those experiencing family violence. Specifically, the ALRC was asked to look at child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions.

1.2 A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation. In the course of the Inquiry, the ALRC conducted 110 national consultations and received 165 submissions. In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of its Advisory Committees, Panels, Roundtables and the appointment by the Attorney-General of part-time Commissioners.

1.3 A copy of Family Violence and Commonwealth Laws—Improving Legal Frameworks was tabled in Parliament on 7 February 2012. An electronic version of the Report, the preceding Issues Paper, Discussion Paper, and associated materials including the Summary Report and media releases are available on the ALRC website at www.alrc.gov.au.

1.4 The ALRC refers the Review Panel to the recommendations made in the Commonwealth Family Violence Inquiry insofar as they deal with reforming the Fair Work Act—in particular chapters 16 and 17 of Family Violence and Commonwealth Laws—Improving Legal Frameworks. The ALRC notes that this submission focuses on items 1(g) and 2 of the Review Panel’s Terms of Reference: that is, the differential impact of the Fair Work Act across those employees experiencing family violence and areas where the operation of the legislation could be improved consistent its objects.

1.5 In summary, the ALRC’s key recommendations of relevance to the Review contained in Family Violence and Commonwealth Laws—Improving Legal Frameworks include:

Recommendation 16—1 The Australian Government should consider family violence-related amendments to the Fair Work Act 2009 (Cth) in the course of the 2012 Post-Implementation Review of the Act.

Recommendation 17—1 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending s 65 of the Fair Work Act 2009 (Cth) to provide that an employee:

  1. who is experiencing family violence, or
  2. who is providing care or support to another person who is experiencing family violence,

may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

Recommendation 17—2 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending the National Employment Standards with a view to including provision for additional paid family violence leave.

2. Family Violence in an Employment Context—Background Information and Evidence

2.1 Two thirds of Australian women who report violence by a current partner are in paid employment.[1] The results of the National Domestic Violence and the Workplace Survey conducted in 2011, on behalf of the Australian Domestic and Family Violence Clearinghouse (ADFVC), emphasise the extent of the impact of family violence in an employment context. The survey found that, of those who reported experiencing family violence:

  • nearly half the respondents reported that the violence affected their capacity to get to work—the major reason being physical injury or restraint; and
  • in the last 12 months of the survey period, 19% reported that family violence continued in the workplace, with 12% indicating it occurred in the form of abusive phone calls and emails, and 11% stating that it occurred by way of the violent person attending the workplace.[2]

2.2 Many people experiencing family violence face ongoing difficulties in gaining and retaining paid employment and in disclosing family violence where it may have an impact on their employment. For example, women who have experienced family violence generally have a more disrupted work history, receive lower incomes, and are often in casual and part-time employment.[3] In addition to the negative effects of family violence on employees and the positive effects of employment, family violence also generates an enormous economic and social cost, with broader implications for employers and the economy.

2.3 Family violence is projected to cost the Australian economy an estimated $15.6 billion in 2021–22.[4] In 2004, it reportedly cost the corporate and business sectors over $1.5 billion through direct costs.[5] Where family violence affects employees in the workplace, or leads to their leaving employment, individual employers face costs associated with:

  • absenteeism—including administration costs;
  • decreased productivity;
  • recruitment following staff turnover—estimated as 150% of an employee’s salary annually;[6] and
  • training for new employees and loss of corporate knowledge.[7]

2.4 The employment law system in Australia is premised on the need to provide a balanced framework that promotes labour market engagement, economic productivity and social inclusion. In light of the enormous social and economic costs of family violence, and the high proportion of people experiencing it who are employed, ensuring the employment law system appropriately identifies, responds to and addresses family violence, is central to achieving these aims.

3. General Recommendations for Reform

3.1 In the course of the Commonwealth Family Violence Inquiry, the ALRC examined the intersections between family violence and Commonwealth employment law and recommended a range of reforms to employment-related legislative, regulatory and administrative frameworks. The ALRC made a range of recommendations for reform of the Fair Work Act, its institutions, and agreements and instruments made under the Act, to address the needs—and ultimately the safety—of employees experiencing family violence.

3.2 While implementation is ultimately a matter for government, in the employment context the ALRC suggested that it would be most appropriate to implement the recommended reforms by way of a whole-of-government five-phase approach. The ALRC emphasised that none of the phases are mutually exclusive, nor must they necessarily be sequential. The ALRC suggested 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.
  • Phase Five—review of the National Employment Standards (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.

3.3 While some of the ALRC’s recommendations do not require amendment to the Fair Work Act, or they relate to modern awards and therefore do not fall within the Review Panel’s Terms of Reference, the recommendations of particular relevance to the Review relate to:

  • the general protections provisions under the Fair Work Act; and
  • the National Employment Standards—in particular, the right to request flexible working arrangements and paid family violence leave.

4. Consistency with the Objects of the Fair Work Act

4.1 Section 3 of the Fair Work Act contains the objects of the Act and sets out the manner in which the Act is intended to achieve its specific objectives. The objects reflect, on the one hand, the need to provide a legislative framework that is flexible for businesses and promotes productivity and economic growth and, on the other, the desire to ensure the framework is fair and protects the rights of employees to a guaranteed safety net, flexible working arrangements and fairness and representation at work.

4.2 Of particular importance in the context of the Commonwealth Family Violence Inquiry was the incorporation of references to, and actual entitlements based on, the concept of social inclusion. For example, the inclusion of parental leave and the right to request flexible working arrangements appear to indicate a commitment to ‘provide an opportunity for federal employees to improve the balance between their work and family life and thus support the social inclusion policy objective’.[8]

4.3 In addition, the recommendations made by the ALRC are consistent with the objects of the Act in:

  • providing fair and flexible workplace relations laws;
  • ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES;
  • assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
  • the prevention of discrimination by recognising the right to be represented and protecting against unfair treatment and discrimination.

5. General Protections Provisions

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

5.2 In Family Violence and Commonwealth Laws—Improving Legal Frameworks, the ALRC stated that 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. As the question of whether family violence should be included as a separate ground of discrimination under Commonwealth anti-discrimination laws fell outside the Terms of Reference, the ALRC recommended that the Australian Human Rights Commission (AHRC) examine the possible inclusion of a family-violence related protected attribute, in particular in light of the current consolidation of Commonwealth anti-discrimination laws.

5.3 The ALRC also suggested that possible inclusion in the Fair Work Act be considered once any new ground is included in anti-discrimination legislation. For the information of the Review Panel in considering any amendment to the general protections provisions, the ALRC outlines its discussion of this issue below.

(a) Are the current provisions sufficient?

5.4 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.[9] 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’.[10] 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:[11]

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.[12]

5.5 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.[13] 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.[14]

5.6 The National Network of Working Women’s Centres illustrated the limited protection afforded by the current provisions through a case study.[15]

Case Study

Anne was in an abusive relationship and subject to domestic violence. She was employed as a casual employee. After her employer became aware of the situation the organisation indicated it was prepared to relocate her providing she left the partner. If she failed to provide a written statement indicating she had left, the transfer would be withdrawn. This adverse treatment could not be addressed through current anti-discrimination measures provided for in the Fair Work Act. If domestic violence victim status were a stand-alone attribute, the law may have protected Anne.

5.7 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’.[16]

5.8 Conversely, stakeholders such as ACCI expressed the view that the existing general protections provisions ‘do provide appropriate protections for employees’.[17]

(b) A new ground of discrimination?

5.9 Essentially, the ALRC is of the view that it should not be necessary for people experiencing family violence to ‘engage in complex legal analysis to demonstrate discrimination’ under the existing grounds.[18] 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 expressed the view 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.

5.10 The ALRC notes that 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).

5.11 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 Commonwealth, 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.[19] 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’.[20]

5.12 The ALRC suggests that the meaning and effect of s 351(2) of the Fair Work Act is something the Review Panel could usefully consider.

5.13 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.[21] 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’.[22] In addition, submissions highlighted that the inclusion would be likely to provide additional compliance incentives for employers, including in light of: the Fair Work Ombudsman’s role in investigating discrimination;[23] the applicability of civil penalty provisions;[24] and the availability of injunctions to prevent adverse action or unlawful termination.[25]

6. National Employment Standards

6.1 In Family Violence and Commonwealth Laws—Improving Legal Frameworks, the ALRC examined the NES and expressed the view that minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses.

6.2 As noted by the Australian Chamber of Commerce and Industry (ACCI), tribunals and parliaments in Australia have a ‘long history of creating a limited number of minimum employment standards of general application’.[26] As a result, in the course of the Inquiry, two key questions arose when considering amendment to the NES:

  • Why include provisions relating to family violence, as opposed to other grounds?
  • Why in the NES, as opposed to other workplace instruments and policies?

6.3 Given the prevalence of family violence and its effect on employees, workplaces and productivity, the ALRC considers that the NES, in particular with respect to the right to request flexible work arrangements and family violence-related leave, could play an important role in responding to family violence when it becomes a workplace issue.

6.4 While important, the ADFVC argues that mechanisms other than statutory entitlements alone are inadequate, as statutory entitlements are ‘fundamental to achieving widespread change to address the impact of family violence in the workplace’.[27] This is in part because provision of such entitlements acknowledges that ‘dealing with family violence is a community rather than just an individual responsibility’.[28]

6.5 However, amendment to the NES would involve a significant change to the Fair Work Act framework after already extensive consultations surrounding the introduction of the Act. In addition, there is a need to build a foundation for any such changes, in order to balance the needs of employees with the economic and practical realities faced by businesses and employers.

6.6 As a result, in line with the phased approach to implementation outlined in Chapter 15 of Family Violence and Commonwealth Laws—Improving Legal Frameworks, the ALRC recommended that the Australian Government should consider amending the NES. In particular, the ALRC recommended that there should be consideration of:

  • whether family violence should be included as a circumstance in which an employee should have a right to request flexible working arrangements; and
  • whether additional paid family violence-related leave should be included as a minimum statutory entitlement under the NES.

(a) The right to request flexible working arrangements

Recommendation 17—1 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending s 65 of the Fair Work Act 2009 (Cth) to provide that an employee:

  1.  who is experiencing family violence, or
  2.  who is providing care or support to another person who is experiencing family violence,

may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

6.7 Under the NES, an employee who satisfies the eligibility requirements—who is a parent or otherwise has responsibility for a child who is under school age, or who is under 18 and has a disability—may request that his or her employer change the employee’s working arrangements to assist with the care of the child.[29]

(i) Family violence and the right to request

6.8 In many workplaces, ‘employers and employees work through and deal with many challenging issues affecting workers in their professional and personal lives’,[30] including the impact of family violence. Under existing arrangements, while employees are able to request flexible working arrangements outside the scope of the NES, they are not entitled to a response or reasons and, as a result, there may be a need for a ‘more secure entitlement to access flexible working arrangements’.[31]

6.9 Some stakeholders strongly supported the inclusion of family violence as a ground upon which an employee should be entitled to request flexible working arrangements.[32] Provision of flexible working arrangements is likely to ‘enhance the participation and job security’ of employees experiencing family violence, while allowing employees to deal with issues arising from family violence which may impact on their ability to attend work, or work safely and productively.[33] Arrangements that may assist victims of family violence include: a change in shifts or working hours; changes to work contact details; and changes to work location—all of which are likely to contribute to the safety of the employee.

6.10 While it was acknowledged that ‘many employers already provide important support’ in a range of forms,[34] amendment to the NES would avoid the need for victims of family violence to seek casual employment to achieve flexibility, or to rely solely on the ‘goodwill’ of their particular employer to access flexible working arrangements.[35] This is particularly important for people experiencing family violence who are often casual employees with little power to negotiate such changes.[36]

6.11 By way of comparison, some overseas jurisdictions have enacted legislation that entitles victims of family violence to reduce or reorganise their working hours, change workplaces and make other flexible working arrangements.[37]

6.12 If the right to request provisions were amended, the ALRC suggested that s 65 of the Fair Work Act should provide that an employee who is experiencing family violence, or who is providing care or support to another person who is experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

6.13 The provision should be broadly formulated to cover care or support provided to a member of the employee’s immediate family or household, including children or dependants who may have been affected by family violence,[38] as well as in a range of ‘other important relationships such as Indigenous kinship … neighbours or close friends who may well be more likely to be called upon to care or support a victim of family or domestic violence than a member of the family or household’.[39]

6.14 Of particular note to the Review Panel, the ALRC suggested that evaluation of the effectiveness of the current provision is necessary and each of the concerns identified by stakeholders outlined above should be considered in the course of any proposed amendment.

(ii) Potential limitations with the current provision

6.15 There are two aspects of the current provision that are likely to be particularly restrictive for victims of family violence—eligibility and the employer response period. However, there were also a number of other concerns expressed by many stakeholders in relation to the current structure and operation of s 65 of the Fair Work Act, including the procedural nature of the provision, the limited availability of enforcement mechanisms and the grounds for refusal.

Eligibility requirements

6.16 To be eligible to request flexible work arrangements, the employee must have 12 months continuous service or, for a casual employee, be a long-term casual employee with a reasonable expectation of continuing employment on a regular and systemic basis.[40] The victims of family violence are predominantly women, and generally have a more disrupted work history,[41] which may make it more difficult to satisfy eligibility requirements.[42]

Response period

6.17 An employer must respond to any request for flexible working arrangements by an employee in writing within 21 days and, if refusing the request, must give reasons for doing so.[43] The difficulty is that, due to the unpredictable nature of family violence, employees experiencing family violence may need a response sooner, and that such a response period may mean no change to working arrangements, or even reasons for refusal to allow a change, is available when it is most necessary.[44] However, stakeholders emphasised that this must be balanced with the need to ensure employers have sufficient time to examine and determine appropriate alternative working arrangements.[45]

Procedural nature of the provision

6.18 Concern was also expressed that the provision is procedural rather than substantive. That is, it provides that an employee is entitled to request flexible working arrangements, receive a response and, if that request is refused, be provided with a written statement of reasons.[46] The rationale for the inclusion of a procedural provision was that a similar provision in the UK had demonstrated that ‘simply encouraging employers and employees to discuss options for flexible working arrangements has been very successful in promoting arrangements that work for both employers and employees’.[47] However, stakeholders have emphasised that there are ‘limitations with only having a right to request and not an entrenched clear entitlement’.[48]

Limited enforcement or appeal mechanisms

6.19 There are also limited enforcement or appeal mechanisms available where an employee considers a request has been unreasonably refused.[49] Section 44 of the Fair Work Act provides that an order cannot be made under the civil remedies provisions in relation to contraventions of s 65(5). As a result, civil remedies for breaches of the flexible working arrangement NES do not apply if an employer refuses a request, other than on reasonable business grounds. In addition, s 739 of the Fair Work Act provides that Fair Work Australia must not deal with a dispute about whether an employer had reasonable business grounds to decline a request for flexible working arrangements unless the clause is replicated in an enterprise agreement.[50]

6.20 Stakeholders submitted that the ‘same rights of redress’ that apply to the other NES should be extended to this provision.[51] The ACTU argued that denial of appeal rights to FWA, except where specifically provided for in an enterprise agreement, raised issues of justice, and stated that ‘it is wholly inappropriate that such a basic right to procedural fairness be left to the vagaries of the bargaining framework’.[52]

Refusal on ‘reasonable business grounds’

6.22 Section 65(5) of the Fair Work Act provides that such a request may only be refused on ‘reasonable business grounds’.[53] In light of the lack of legislative clarification of what constitutes reasonable business grounds, some stakeholders suggested that the provision should outline an ‘an employer’s obligations to have properly considered the request and reasonably endeavoured to accommodate the request’.[54]

(b) Paid family violence leave

Recommendation 17—2 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending the National Employment Standards with a view to including provision for additional paid family violence leave.

6.23 Under the NES, employees are entitled to access a number of categories of paid and unpaid leave, including: parental leave; annual leave; personal/carer’s leave; compassionate leave; community service leave; and long service leave. Section 107 of the Fair Work Act includes notice and evidence requirements relating to leave under the NES. An employee who is experiencing family violence may use a combination of leave entitlements to take time off work for purposes related to family violence.[55] However, there are restrictions on the use of particular types of leave;[56] and where family violence occurs over a prolonged period, people experiencing family violence may quickly exhaust their leave entitlements.

6.24 In many cases, employers will grant employees access to forms of existing leave in circumstances where it may be required as a result of family violence. However, stakeholders suggested that frequently those experiencing violence exhaust their existing leave entitlements, particularly where the violence occurs over a prolonged period.[57] In addition, there is currently a discretionary element associated with the granting of leave in cases of family violence. In light of this, the ALRC considers existing leave provisions provided for in the NES may not adequately provide for the needs of employees experiencing family violence.

6.25 Employer organisations expressed significant concerns about the costs associated with the introduction of additional leave entitlements.[58] In order to address such concerns it is necessary to ensure there is widespread recognition of the need for additional leave, and to ensure that employers—who are likely to shoulder the burden of the additional cost of leave—are satisfied that a ‘strong case is made out for doing so’.[59] As a result, the ALRC suggested that research, data collection and economic modelling are important precursors to the recommended review of the NES and determination of any quantum of leave.[60] Further, in examining leave-related costs, the ALRC emphasised the need to factor in current monetary and non-monetary costs to the Australian economy and businesses associated with family violence.[61]

6.26 In light of such opposition to the inclusion of family violence leave under the NES, the ALRC considers that the phased approach and consideration of this issue is vital. In the course of the phased approach, the ALRC considers that it may be appropriate for the Government to amend the Fair Work Act to provide for a minimum statutory entitlement to family violence-related leave that will contribute to a universal approach to, and understanding of, family violence and its impact in the workplace.[62]

6.27 While recognising the important role played by other forms of regulation in this area, such as enterprise agreements, the ALRC considers that a minimum statutory entitlement is ultimately necessary and is likely to serve a number of purposes. First, it would ensure a universal entitlement to leave for employees experiencing family violence. This is consistent with the themes identified in the conceptual framework for this Inquiry and would ensure all national system employees would have access to the leave. The ALRC considers that access to family violence leave through bargaining and enterprise agreements may not be sufficient to protect the safety of employees experiencing family violence.[63] Using paid parental leave as an example, the ADFVC submitted that ‘despite several decades of bargaining, success was incremental at best and ultimately, real change has only eventuated through the recently-adopted federal legislative Paid Parental Leave scheme’.[64]

6.28 Secondly, the introduction of family violence leave as part of the minimum safety net under the NES is likely to play an educative role.[65] It gives express recognition to family violence as a national issue that has a significant impact on the Australian economy. It also recognises that both the government and workplaces have a role in, and responsibility for, responding to family violence.[66] This would build on the work already undertaken by the government in the National Plan to Reduce Violence against Women and their Children and similar initiatives noted in Chapter 1 of Family Violence and Commonwealth Laws—Improving Legal Frameworks .[67]

6.29 Another benefit of including family violence leave under the NES would be the availability of enforcement mechanisms through the application of civil remedy provisions.

(i) Options for reform

6.30 There are a number of options for reform of the NES to provide access to family violence leave.

6.31 As a preliminary step, the ALRC considers that it may be appropriate to provide that, to the extent they are not already able to do so, employees experiencing family violence should be able to access other forms of existing leave for circumstances arising from family violence. In particular, the ALRC suggested that amending the circumstances in s 97 of the Fair Work Act,under which personal/carer’s leave can be taken, to include circumstances arising from family violence, may provide employees experiencing family violence with access to leave where necessary in a wider range of situations than is currently the case. For example, this would provide employees with access to personal leave to attend court proceedings, a purpose which is not currently provided for under personal/carer’s leave as it does not relate to illness or injury.[68]

6.32 In addition, the ALRC considers more substantive change is required to provide access to additional leave. While broadly supporting the introduction of some form of family violence leave, stakeholders expressed differing views with respect to the two key options for reform. These options are to provide either:

  • a new statutory minimum entitlement to ‘family violence leave’ under the NES; or
  • additional leave for family violence purposes as a subset of personal/carer’s leave under the NES.

6.34 A range of stakeholders also suggested a new minimum statutory entitlement to family violence leave, paid for by the government in a similar way to the paid parental leave scheme.[69]

6.35 By way of comparison, a number of overseas jurisdictions have enacted legislation that entitles victims of family violence to take leave from work, including specifically identified family violence leave, or requirements to grant ‘reasonable and necessary leave’ for purposes related to experiencing family violence.[70]

Specific family violence leave

6.36 Stakeholders who supported this option expressed the view that it was necessary to articulate the entitlement as an additional, but separate, category of leave in order to:

  • reflect the conceptual differences between leave for family violence and other purposes, and to validate the experiences of people experiencing family violence;
  • provide a requirement in relation to which employers must develop specific policies and procedures;
  • more clearly identify family violence as a possible work health and safety issue;
  • allow for different evidentiary requirements from other forms of leave; and
  • provide consistency and clarity in light of the introduction of family violence leave under clauses in enterprise agreements.[71]
Additional leave as a subset of personal/carer’s leave

6.37 Incorporating additional family violence leave into existing entitlements may create a ‘less threatening step’ for employees,[72] and utilise the existing leave system and administrative processes. However, disclosure of family violence would still be required to access any additional leave included as a subset of personal/carer’s leave.

6.38 In order for family violence leave to be included as such a subset, the provision would need to be amended to account for circumstances other than those involving personal illness or injury or caring responsibilities. As the provisions operate, an employee can access carer’s leave to provide care or support because of illness or injury or an ‘unexpected emergency’ affecting the person for whom they are caring. However, an employee can only access personal leave due to illness or injury, not where they are affected by an unexpected emergency, such as in circumstances of family violence.[73]

(ii) Basic requirements

6.39 The ALRC heard a range of views about the most appropriate form of family violence leave. The ALRC considers that there should be a core of basic requirements with respect to family violence leave, including that it is paid, flexible and easily accessible where necessary, whilst containing sufficient safeguards to maintain the integrity of the leave system. Any family violence leave introduced under the NES should:

  • be introduced in the context of a range of initiatives aimed at addressing family violence in the workplace;[74]
  • be accessible in a range of circumstances arising from family violence, including to: attend appointments with support services; receive medical attention; receive legal advice or attend court; arrange or undertake child care; arrange accommodation or relocate; or attend to other immediate safety issues;[75]
  • be accessible as consecutive or single days, or as a fraction of a day;[76]
  • be available to employees who are victims of family violence as well employees who need to access such leave to provide care or support to another person, for example a member of the employee’s immediate family or household who is experiencing family violence;[77]
  • not be subject to a minimum employment or qualifying period, or to be accrued in advance;[78]
  • be paid;[79] and
  • be subject to verification of entitlement.[80]
Complementary initiatives

6.40 The ALRC considers that there is a need to introduce a range of initiatives to address family violence as an issue affecting the workplace. Recognising the need for a holistic approach to addressing family violence and its impact on Australian workplaces, the ALRC made a number of overarching recommendations such as with respect to the need for a national education and awareness campaign, and other initiatives.[81]

Paid leave

6.41 There are strong arguments in favour of the need for paid family violence leave, or a combination of paid and unpaid leave, to avoid provision of a ‘hollow’ entitlement, risk further disadvantaging victims of family violence, or to fail to achieve the objects underlying its introduction.[82] Stakeholders emphasised that ensuring leave is paid recognises that people experiencing family violence are often in a position of financial hardship and allows them to ‘maintain their income’[83] at a time where maintain economic independence and financial security is vital to ‘maintaining suitable housing, ensur[ing] future safety and on the ability to secure on-going family stability for them and their children’.[84]

6.42 In light of the focus of the Inquiry, in part, on ensuring the economic security and independence of employees experiencing family violence, and stakeholder concerns about the possible compounding effect unpaid family violence leave may have, the ALRC formed the view that any entitlement to family violence leave should provide for paid leave and, possibly, also additional unpaid leave.

Accessibility

6.43 Employees may need to access family violence leave in a range of circumstances. Accordingly, the ALRC suggested that any provision under the NES be broadly formulated to enable an employee to deal with a range of circumstances arising from family violence including, for example, to attend appointments with support services; receive medical attention; receive legal advice or attend court; arrange or undertake child care; arrange accommodation or relocate; or attend to other immediate safety issues.

6.44 To facilitate the taking of leave in a diverse range of circumstances, the ALRC considers it would be appropriate to allow the taking of family violence leave to be accessible as consecutive or single days, or as a fraction of a day.

Entitlement

6.55 Several stakeholders highlighted the impact that family violence often has, not only on the victims, but also on friends, relatives and other household members, including children.[85] The AHRC suggested that the ALRC consider the extension of family violence leave to those ‘assisting and supporting’ employees affected by family violence.[86]

6.66 The ALRC agreed that an employee who is experiencing family violence, or who is required to provide care or support to another person who is experiencing family violence, should be entitled to family violence leave. The ALRC suggested that any definition of another person should include members of immediate family or household but also recognise the kinship and family relationships of Indigenous people as well as people from culturally and linguistically diverse communities, the living arrangements and relationships of people with disability,[87] and those in same-sex relationships.[88]

6.67 Under s 96 of the Fair Work Act, personal/carer’s leave under the NES accrues on the basis of 10 days paid personal/carer’s leave per year of service. The entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.[89] However, the nature of family violence itself, and the often interrupted work history of victims of family violence, are such that family violence leave should not be subject to a minimum employment or qualifying period, or need to be accrued in advance. Such limitations may ‘undermine the beneficial nature of this type of leave’ and prevent access by those who most require it.[90]

6.68 As outlined above, the notice requirements under s 107 of the Fair Work Act provide that an employee must give his or her employer notice of the taking of leave as soon as practicable (which may be a time after the leave has started) and advise the employer of the expected period of the leave.[91] While, in some cases, it may be difficult for a victim to notify their employer in advance, s 107 appears to strike a balance between the needs of an employee to take leave, often at short notice, with the need for employers to be informed as soon as practicable in order to make appropriate arrangements. The ALRC considers the notice requirements under s 107 of the Fair Work Act relating to personal/carer’s leave should be mirrored in any provision relating to family violence leave.

6.69 Another entitlement issue raised in submissions, which will need to be considered in the course of any review, is whether perpetrators of family violence should be entitled to access any family violence leave under the NES. The Queensland Law Society stated that ‘an employer should not be required to determine who is a victim and who is a perpetrator of domestic violence’ and so suggested that ‘to ensure access to justice for all parties, these circumstances should apply to both the applicant and the respondent of any family violence action’.[92] Conversely, stakeholders such as the Kingsford Legal Centre emphasised that ‘perpetrators of family violence should not benefit from their actions’ and are not usually the ones who require access to leave.[93] In the ALRC’s view, access to leave by people using family violence would be contrary to the objects according to which any such leave should be introduced.

Period of leave

6.70 The ALRC was conscious of the need to balance the needs, rights and responsibilities of employees and employers. The ALRC is required, under the Australian Law Reform Commission Act 1996 (Cth), to consider the cost implications of any recommendation.[94] The ALRC suggested that the quantum of leave provided for under the NES should be determined in the course of any review into the NES, following consultation with key stakeholders and appropriate analysis of actual periods of leave taken and the projected cost to business.[95]

6.71 There are differing views as to the most appropriate period of any family violence leave. Many stakeholders submitted that 20 days of paid leave would be appropriate, in line with existing family violence leave entitlements under enterprise agreements.[96] However, while this period may be appropriate in the context of an enterprise agreement negotiated to take into account the circumstances of an individual employer, it may not be appropriate as a statutory minimum.

6.72 Other stakeholders supported an entitlement of up to two days of leave per occasion.[97] This approach would be in line with the enterprise agreement negotiated at the University of New South Wales.[98] However, in circumstances of ongoing family violence, this entitlement might result in an employee being entitled to a potentially unlimited amount of leave. Further, processing these applications may impose a significant administrative burden on employers.

Verification of entitlement

6.73 While many stakeholders strongly supported the introduction of family violence leave, many recognised the need to ensure that employees accessing such leave are able to demonstrate their entitlement or experience of family violence in a way that maintains the integrity of the leave system and does not place an undue administrative burden on employers. Employer organisations in particular expressed concern about the provision of an additional category of family violence leave being open to ‘unscrupulous behaviour and abuse’.[99] To preserve the integrity of the leave system, employees accessing family violence leave must be subject to the same requirements to demonstrate their entitlement to the leave as other forms of leave.

6.74 The ALRC considers that the existing, generally expressed, evidence requirements provided for under s 107 of the Fair Work Act should also apply to any family violence leave. However, the types of verification that a victim of family violence may be able to provide to an employer upon request are varied and a number of forms of documentary verification may be appropriate to demonstrate an entitlement to family violence leave. These include a document issued by:

  • a police officer;
  • a court;
  • a health professional, including doctor, nurse or psychiatrist/psychologist;
  • a lawyer;
  • a family violence service or refuge worker; and/or
  • the employee, in the form of a signed statutory declaration.[100]

7. Further Contact

We hope this has been of assistance to you. If you require any further information please do not hesitate to contact me on (02) 8238 6319 or Amanda Alford on (02) 8238 6323.

Yours sincerely,

Rosalind Croucher

[1]Australian Bureau of Statistics, Personal Safety Survey, Catalogue No 4906.0 (2005), 11, 34.

[2]ADFVC, ADFVC National Domestic Violence and the Workplace Survey (2011). The survey sample was 3,611 respondents of which 81% were women and 90% were either a member of the National Tertiary Education Union or the NSW Nurses Association.

[3]M Costello, D Chung and E Carson, ‘Exploring Pathways Out of Poverty: Making Connections Between Domestic Violence and Employment Practices’ (2005) 40 Australian Journal of Social Issues 253, 256; S Franzway, C Zufferey and D Chung, ‘Domestic Violence and Women’s Employment’ (Paper presented at Our Work, Our Lives National Conference on Women and Industrial Relations, Adelaide, 21 September 2007).

[4] In terms of the overall economic impact of family violence, several key studies have been conducted estimating the total annual cost of violence against women by their partners. While the focus of the studies has been on women, the results are also useful to indicate the enormous economic impact of family violence more broadly. See, eg, National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence Against Women and their Children, 2009–2021 (2009), 43; KPMG, The Cost of Violence against Women and their Children (2009), prepared for the National Council to Reduce Violence Against Women and their Children.

[5] See, eg, Victorian Community Council Against Violence, Family Violence is a Workplace Issue: Workplace Models to Prevent Family Violence (2004).

[6]ADFVC, Why Domestic Violence Entitlements Makes Economic Sense: The Economic Costs of Domestic Violence on the Workplace, referring to Australian Human Resources Institute, ‘Love ’Em don’t Lose ’Em: Identifying Retention Strategies that Work’ (2008) 2(1) HR Pulse 1.

[7]ADFVC, Why Domestic Violence Entitlements Makes Economic Sense: The Economic Costs of Domestic Violence on the Workplace.

[8]J Murray and R Owens, ‘The Safety Net: Labour Standards in the New Era’ in A Forsyth and A Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (2009) 40, 66.

[9]Australian Human Rights Commission, Submission CFV 48.

[10]Ibid.

[11]Ibid; ACTU, Submission CFV 39; ADFVC, Submission CFV 26; National Network of Working Women’s Centres, Submission CFV 20; WEAVE, Submission CFV 14; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.

[12]Fair Work Act 2009 (Cth) s 351(1). Note, s 772(1)(f), which extends coverage to non-national system employees, prohibits termination of an employee’s employment on the basis of the same discriminatory grounds. Section 772(1)(f) is more limited than s 351(1) as it only applies to termination of employment, rather than ‘adverse action’ more generally: Fair Work Act 2009 (Cth) s 772(1)(f).

[13]Australian Human Rights Commission, Submission CFV 48. See also: ADFVC, Submission CFV 26; A Heffernan and L Matahaere, ‘Domestic Violence Discrimination in the Workplace: Is Statutory Protection Necessary?’ (Paper presented at Our Work, Our Lives National Conference on Women and Industrial Relations, Darwin, August 12–13 2010).

[14]Australian Human Rights Commission, Submission CFV 48.

[15]National Network of Working Women’s Centres, Submission CFV 20.

[16]Victoria Legal Aid, Submission CFV 25. See also Women with Disabilities ACT, Submission CFV 153.

[17] See, eg, ACCI, Submission CFV 19.

[18]Redfern Legal Centre, Submission CFV 15.

[19]ACTU, Submission CFV 39; Victoria Legal Aid, Submission CFV 25.

[20]Australian Human Rights Commission, Submission CFV 48. See also Explanatory Memorandum, Fair Work Bill 2008 (Cth), ch 3, pt 3–1.

[21]ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; ADFVC, Submission CFV 26; Victoria Legal Aid, Submission CFV 25; 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; Confidential, Submission CFV 13; Women’s Health Victoria, Submission CFV 11; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10; Northern Rivers Community Legal Centre, Submission CFV 08. Queensland Law Society, Submission CFV 21 also expressed the view that the insertion would have ‘some merit’.

[22]Joint submission from Domestic Violence Victoria and others, Submission CFV 22. See also ADFVC, Submission CFV 26.

[23] The FWO can investigate discrimination against employees and investigate on its own initiative.

[24] Sections 351(1) and 772(1)(f) of the Fair Work Act 2009 (Cth) attract civil penalty provisions under pt 4–1, allowing employees, unions and FWO to commence penalty order proceedings against employers who contravene the general protections provisions.

[25]ADFVC, Submission CFV 26.

[26]ACCI, Submission CFV 19.

[27]ADFVC, Submission CFV 26. Further, for example, the AHRC submitted that amendments to the NES ‘are preferable to this issue being left for parties to negotiate in collective workplace agreements. History has shown that clauses which primarily benefit women are slow to become common bargaining claims and be negotiated into workplace agreements’: Australian Human Rights Commission, Submission CFV 48.

[28]Redfern Legal Centre, Submission CFV 15.

[29]Fair Work Act 2009 (Cth) s 65(1), (2). The Note to s 65(1) states that examples of changes in working arrangements include changes in hours, patterns, and location of work.

[30]ACCI, Submission CFV 19.

[31]Australian Human Rights Commission, Submission CFV 48; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.

[32]Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; National Network of Working Women’s Centres, Submission CFV 20; AASW (Qld), Submission CFV 17; Redfern Legal Centre, Submission CFV 15; WEAVE, Submission CFV 14; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10; Northern Rivers Community Legal Centre, Submission CFV 08.

[33]ACTU, Submission CFV 39; National Network of Working Women’s Centres, Submission CFV 20.

[34]ACCI, Submission CFV 19.

[35]Australian Human Rights Commission, Submission CFV 48. See also R Braaf and I Meyering, Seeking Security: Promoting Women’s Economic Wellbeing Following Domestic Violence (2011), 90.

[36]National Network of Working Women’s Centres, Submission CFV 20.

[37] See, eg, Employment Rights Act 1996 (UK) pt 8A; Employment Relations Act 2000 (NZ) pt 6AA; Organic Act on Integrated Protection Measures Against Gender Violence 2004 (Spain) art 21.

[38] Several stakeholders emphasised the importance of flexible working arrangements in ensuring employees with children are able to care for their children, particularly where they have been affected by family violence: ACTU, Submission CFV 39; National Network of Working Women’s Centres, Submission CFV 20.

[39]ACTU, Submission CFV 100.

[40]Fair Work Act 2009 (Cth) s 65.

[41]S Franzway, C Zufferey and D Chung, ‘Domestic Violence and Women’s Employment’ (Paper presented at Our Work, Our Lives National Conference on Women and Industrial Relations, Adelaide, 21 September 2007); M Costello, D Chung and E Carson, ‘Exploring Pathways Out of Poverty: Making Connections Between Domestic Violence and Employment Practices’ (2005) 40 Australian Journal of Social Issues 253, 256.

[42]ADFVC, Submission CFV 26. See also: Women’s Legal Services NSW, Submission CFV 28; Joint submission from Domestic Violence Victoria and others, Submission CFV 22.

[43]Fair Work Act 2009 (Cth) s 65(4), (5).

[44]National Network of Working Women’s Centres, Submission CFV 20.

[45] See, eg, ACCI, Submission CFV 128.

[46]Fair Work Act 2009 (Cth) s 65.

[47]Department of Education, Employment and Workplace Relations, National Employment Standards Exposure Draft: Discussion Paper (2008), 61.

[48]National Network of Working Women’s Centres, Submission CFV 20.

[49] Concern about this was expressed by a number of stakeholders. See, eg, Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39.

[50]Fair Work Act 2009 (Cth) s 739.

[51]Australian Human Rights Commission, Submission CFV 48.

[52]ACTU, Submission CFV 39.

[53]Fair Work Act 2009 (Cth) s 65(5). The Fair Work Act 2009 (Cth) does not elaborate on what may, or may not, comprise ‘reasonable business grounds’ and there has been no case law regarding the meaning of the phrase. However, there has been significant commentary: see, eg, J Wells, ‘Flexible Work in 2010: The impact of the Fair Work Act 2009 (Cth) on Employer Control of, and Employee Access to, Flexible Working Hours’ (Paper presented at Our Work, Our Lives National Conference on Women and Industrial Relations, Darwin, 12 August 2010) 5–7. In the Family Provisions Test Case (2005) 143 IR 245, decided prior to the introduction of the provision, the AIRC formulated a similar entitlement and suggested that such grounds may include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service: Family Provisions Test Case (2005) 143 IR 245, 333.

[54] The ACTU proposed adopting wording from the Equal Opportunity Act 1995 (Vic): ACTU, Submission CFV 100.

[55]AFEI, Submission CFV 158; Ai Group, Submission CFV 141; DEEWR, Submission CFV 130; ACCI, Submission CFV 128.

[56] For example, personal/carer’s leave can only be used in circumstances of personal illness or injury or caring responsibilities. Strictly interpreted such leave could not be used in circumstances such as attending court: Fair Work Act 2009 (Cth) ch 2, pt 2–2, div 7.

[57] See, eg, ADFVC, Submission CFV 26; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.

[58]AFEI, Submission CFV 158; Ai Group, Submission CFV 141; ACCI, Submission CFV 128; CCIWA, Submission CFV 123; Business SA, Submission CFV 98; ACCI, Submission CFV 19.

[59]ACCI, Submission CFV 19.

[60] See Ch 15.

[61] See Ch 1 and 15.

[62] Submissions received in relation to this issue were overwhelmingly supportive of the introduction of a minimum statutory entitlement to family violence leave: Kingsford Legal Centre, Submission CFV 161; AEU, Submission CFV 125; NSW Women’s Refuge Movement Working Party, Submission CFV 120; Aboriginal & Torres Strait Islander Women’s Legal & Advocacy Service, Submission CFV 103; Australian Human Rights Commission, Submission CFV 48; ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; Confidential, Submission CFV 27; ADFVC, Submission
CFV 26
; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; National Network of Working Women’s Centres, Submission CFV 20; AASW (Qld), Submission CFV 17; 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; Northern Rivers Community Legal Centre, Submission CFV 08.

[63]ACTU, Submission CFV 39; ADFVC, Submission CFV 26.

[64]ADFVC, Submission CFV 26.

[65]National Network of Working Women’s Centres, Submission CFV 20.

[66]Joint submission from Domestic Violence Victoria and others, Submission CFV 22.

[67]National Council to Reduce Violence Against Women, National Plan to Reduce Violence Against Women and Their Children (2010-2022) (2011), Commonwealth of Australia.

[68]ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; National Network of Working Women’s Centres, Submission CFV 20; Redfern Legal Centre, Submission CFV 15. The ACTU advocated for the wholesale expansion and extension of personal/carer’s leave, which would also accommodate the needs of employees who care for or support a person experiencing family violence: ACTU, Submission CFV 39.

[69]Union Roundtable, Consultation, Sydney, 30 September 2011.

[70] For example, entitlements in some US jurisdictions range from three days to 12 weeks, or ‘reasonable and necessary’ leave: Victims Economic Security and Safety Act 820 Illinois Compiled Statutes 180 (US) § 20; Maine Revised Statutes 26 § 850 (US); Revised Code of Washington 49 § 4976 (US); Hawaii Revised Statutes 21 § 378–72 (US).

[71]ADFVC, Submission CFV 124. See also Kingsford Legal Centre, Submission CFV 161; Women’s Health Victoria, Submission CFV 133; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 113; Australian Human Rights Commission, Submission CFV 48.

[72]AEU, Submission CFV 125; ACTU, Submission CFV 100.

[73]Fair Work Act 2009 (Cth) s 97.

[74]Joint submission from Domestic Violence Victoria and others, Submission CFV 22; AASW (Qld), Submission CFV 17; Women’s Health Victoria, Submission CFV 11.

[75]Women’s Legal Services NSW, Submission CFV 28; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; Women’s Health Victoria, Submission CFV 11.

[76]ACTU, Submission CFV 39; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.

[77] See eg, ACTU, Submission CFV 100; Australian Human Rights Commission, Submission CFV 48.

[78]ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22.

[79]ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; Confidential, Submission CFV 27; 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.

[80]Australian Human Rights Commission, Submission CFV 48; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; Office of the Australian Information Commissioner, Submission CFV 18; 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.

[81] See, eg, Rec 15–1.

[82]Kingsford Legal Centre, Submission CFV 161; ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; Confidential, Submission CFV 27; 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.

[83]Kingsford Legal Centre, Submission CFV 161.

[84]ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10. See also ACTU, Submission CFV 39.

[85]ACTU, Submission CFV 100; Australian Human Rights Commission, Submission CFV 48; National Network of Working Women’s Centres, Submission CFV 20.

[86]Australian Human Rights Commission, Submission CFV 48.

[87]People with Disability, Consultation, By telephone, 10 October 2011.

[88]ACTU, Submission CFV 100; LGBTI Community Roundtable, Consultation, Sydney, 28 September 2011.

[89]Fair Work Act 2009 (Cth) s 96.

[90]ADFVC, Submission CFV 26. See also ACTU, Submission CFV 39; Women’s Legal Services NSW, Submission CFV 28; Joint submission from Domestic Violence Victoria and others, Submission CFV 22.

[91]Fair Work Act 2009 (Cth) s 107.

[92]Queensland Law Society, Submission CFV 21.

[93]Kingsford Legal Centre, Submission CFV 161.

[94]Australian Law Reform Commission Act 1996 (Cth) s 24 as amended by the Financial Framework Legislation Amendment Act 2010 (Cth).

[95]AFEI, Submission CFV 158; ACCI, Submission CFV 128; Australian Human Rights Commission, Submission CFV 48; National Network of Working Women’s Centres, Submission CFV 20; ACCI, Submission CFV 19.

[96]ACTU, Submission CFV 39; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Women’s Health Victoria, Submission CFV 11; ASU (Victorian and Tasmanian Authorities and Services Branch), Submission CFV 10.

[97]Queensland Law Society, Submission CFV 21.

[98]University of New South Wales (Professional Staff), Enterprise Agreement 2010.

[99]Business SA, Submission CFV 98. See also ACCI, Submission CFV 128; Queensland Law Society, Submission CFV 21.

[100]Australian Human Rights Commission, Submission CFV 48; ADFVC, Submission CFV 26; Joint submission from Domestic Violence Victoria and others, Submission CFV 22; Queensland Law Society, Submission CFV 21; Office of the Australian Information Commissioner, Submission CFV 18; 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.