Chapters

14. Employment Law—Overarching Issues and a National Approach

15. The Pre-Employment Stage

16. Employment—The Fair Work Act 2009 (Cth)

17. Employment—The Fair Work Act 2009 (Cth) Continued

18. Occupational Health and Safety Law

 

 

Proposals and Questions in this Part

Question 14–1      In addition to removal of the employee records exemption in the Privacy Act 1988 (Cth), what reforms, if any, are needed to protect the personal information of employees who disclose family violence for the purposes of accessing new entitlements such as those proposed in Chapters 16 and 17?

Proposal 14–1        There is a need to safeguard the personal information of employees who have disclosed family violence in the employment context. The Office of the Australian Information Commissioner and the Fair Work Ombudsman should, in consultation with unions and employer organisations:

(a)      develop a model privacy policy which incorporates consideration of family violence-related personal information; and

(b)     develop or revise guidance for employers in relation to their privacy obligations where an employee discloses, or they are aware of, family violence.

Proposal 14–2        The Australian Government should initiate a national education and awareness campaign about family violence in the employment context.

Proposal 14–3        Section 653 of the Fair Work Act 2009 (Cth) should be amended to provide that Fair Work Australia must, in conducting the review and research required under that section, consider family violence-related developments and the effect of family violence on the employment of those experiencing it, in relation to:

(a)      enterprise agreements;

(b)     individual flexibility arrangements; and

(c)      the National Employment Standards.

Question 14–2      In addition to review and research by Fair Work Australia, what is the most appropriate mechanism to capture and make publicly available information about the inclusion of family violence clauses in enterprise agreements?

Question 14–3      How should Fair Work Australia collect data in relation to the incidence and frequency with which family violence is raised in unfair dismissal and general protections matters?

Proposal 14–4        In the course of its 2012 and 2014 reviews of modern awards, Fair Work Australia should consider issues relating to data collection.

Question 15–1      In what ways, if any, should the Australian Government include a requirement in requests for tender and contracts for employment services that JSA and DES providers demonstrate an understanding of, and systems and policies to address, the needs of job seekers experiencing family violence?

Question 15–2      How is personal information about individual job seekers shared between Centrelink, DEEWR, the Department of Human Services, and JSA, DES and IEP providers?

Question 15–3      How does, or would, the existence of a Centrelink ‘Deny Access Facility’, or other similar safety measures, such as a ‘safety concern flag’, affect what information about job seekers DEEWR and JSA and DES providers can access?

Proposal 15–1        Centrelink, DEEWR, JSA, DES and IEP providers, and ESAt and JCA assessors (through the Department of Human Services) should consider issues, including appropriate privacy safeguards, with respect to the personal information of individual job seekers who have disclosed family violence in the context of their information-sharing arrangements.

Proposal 15–2        The current circumstances in which a job seeker can change JSA or DES providers should be extended to circumstances where a job seeker who is experiencing family violence is registered with the same JSA or DES provider as the person using family violence.

Question 15–4      Should JSA and DES providers routinely screen for family violence? If so:

  • what should the focus of screening be;
  • how, and in what manner and environment, should such screening be conducted; and
  • when should such screening be conducted?

Question 15–5      Under the Job Seeker Classification Instrument Guidelines if a job seeker discloses family violence, the job seeker should immediately be referred to a Centrelink social worker. What reforms, if any, are necessary to ensure this occurs in practice?

Proposal 15–3        JSA and DES providers should introduce specialist systems and programs for job seekers experiencing family violence—for example, a targeted job placement program.

Proposal 15–4        As far as possible, or at the request of the job seeker, all Job Seeker Classification Instrument interviews should be conducted in:

(a)           person;

(b)           private; and

(c)      the presence of only the interviewer and the job seeker.

Question 15–6      The Job Seeker Classification Instrument includes a number of factors, or categories, including ‘living circumstances’ and ‘personal characteristics’. Should DEEWR amend those categories to ensure the Job Seeker Classification Instrument incorporates consideration of safety or other concerns arising from the job seeker’s experience of family violence?

Proposal 15–5        DEEWR should amend the Job Seeker Classification Instrument to include ‘family violence’ as a new and separate category of information.

Question 15–7      A job seeker is referred to an ESAt or JCA where the results of the Job Seeker Classification Instrument indicate ‘significant barriers to work’. Should the disclosure of family violence by a job seeker automatically constitute a ‘significant barrier to work’ and lead to referral for an ESAt or JCA?

Question 15–8               Where a job seeker has disclosed family violence, should there be streaming of job seekers to ESAt and JCA assessors with specific qualifications or expertise with respect to family violence, where possible?

Question 15–9               When conducting an ESAt or JCA, how do assessors consider the impact of family violence on a job seeker’s readiness to work? What changes, if any, could ensure that ESAts and JCAs capture and assess the circumstances of job seekers experiencing family violence

Question 15–10     In practice, to what extent can, or do, recommendations made by ESAt or JCA assessors in relation to stream placement or referral to DES account for the needs and experiences of job seekers experiencing family violence?

Proposal 15–6        DEEWR and the Department of Human Services should require that all JSA, DES and IEP provider staff and ESAt and JCA assessors receive regular and consistent training in relation to:

(a)      the nature, features and dynamics of family violence, including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children;

(b)     recognition of the impact of family violence on particular job seekers such as:

  • Indigenous people;
  • those from culturally and linguistically diverse backgrounds;
  • those from lesbian, gay, bisexual, trans and intersex communities;
  • children and young people;
  • older persons; and
  • people with disability

(c)      the potential impact of family violence on a job seeker’s capacity to work and barriers to employment;

(d)     appropriate referral processes; and

(e)      the availability of support services.

Question 15–11     In what ways, if any, should the Australian Government include a requirement in requests for tender and contracts for employment services that IEP projects and services, or panel providers, demonstrate an understanding of, and systems and policies to address, the needs of Indigenous job seekers experiencing family violence?

Question 15–12     In what ways, if any, should the JSA, DES, IEP or CDEP systems be reformed to assist Indigenous job seekers who are experiencing family violence?

Question 15–13      In what ways, if any, should the JSA or DES systems be reformed to assist job seekers from culturally and linguistically diverse communities who are experiencing family violence?

Question 15–14     In what ways, if any, should the JSA or DES systems be reformed to assist job seekers with disability who are experiencing family violence?

Question 15–15      In the context of the Australian Government review of new approaches for the delivery of rural and remote employment services, in what ways, if any, could any new approach incorporate measures to protect the safety of job seekers experiencing family violence?

Question 16–1      How do, or how could, Fair Work Australia’s role, functions or processes protect the safety of applicants experiencing family violence?

Question 16–2       In making an application to Fair Work Australia, applicants are required to pay an application fee. Under the Fair Work Regulations 2009 (Cth) an exception applies if an applicant can establish that he or she would suffer ‘serious hardship’ if required to pay the relevant fee. In practice, do people experiencing family violence face difficulty in establishing that they would suffer ‘serious hardship’? If so, how could this be addressed?

Question 16–3      In applying for waiver of an application fee, referred to in Question 16–2, applicants must complete a ‘Waiver of Application Fee’ form. How could the form be amended to ensure issues of family violence affecting the ability to pay are brought to the attention of Fair Work Australia?

Question 16–4      In Proposals 14–1, 17–1 and 17–3 the role of the Fair Work Ombudsman is discussed. In what other ways, if any, could the Fair Work Ombudsman’s role, function or processes protect employees experiencing family violence?

Proposal 16–1        Section 65 of the Fair Work Act 2009 (Cth) should be amended to provide that an employee who is experiencing family violence, or who is providing care or support to a member of the employee’s immediate family or household 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.

This additional ground should:

(a)      remove the requirement that an employee be employed for 12 months, or be a long-term casual and have a reasonable expectation of continuing employment on a regular and systemic basis, prior to making a request for flexible working arrangements; and

(b)     provide that the employer must give the employee a written response to the request within seven days, stating whether the employer grants or refuses the request.

The next proposals are presented as alternate options: Proposal 16–2 OR Proposals 16–3 and 16–4

OPTION ONE: Proposal 16–2

Proposal 16–2        The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide for a new minimum statutory entitlement to 10 days paid family violence leave. An employee should be entitled to access such leave for purposes arising from the employee’s experience of family violence, or to provide care or support to a member of the employee’s immediate family or household who is experiencing family violence.

OPTION TWO: Proposals 16–3 and 16–4

Proposal 16–3        The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide for a minimum statutory entitlement to an additional 10 days paid personal/carer’s leave. An employee should be entitled to access the additional leave solely for purposes arising from the employee’s experience of family violence, or to provide care or support to a member of the employee’s immediate family or household who is experiencing family violence.

Proposal 16–4       The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide that an employee may access the additional personal/carer’s leave referred to in Proposal 16–3:

(a)      because the employee is not fit for work because of a circumstance arising from the employee’s experience of family violence; or

(b)     to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support as a result of their experience of family violence.

Proposal 17–1       The Fair Work Ombudsman should develop a guide to negotiating individual flexibility arrangements to respond to the needs of employees experiencing family violence, in consultation with the Australian Council of Trade Unions and employer organisations.

Proposal 17–2       The Australian Government should encourage the inclusion of family violence clauses in enterprise agreements. Agreements should, at a minimum:

(a)           recognise that verification of family violence may be required;

(b)     ensure the confidentiality of any personal information disclosed;

(c)      establish lines of communication for employees;

(d)     set out relevant roles and responsibilities;

(e)      provide for flexible working arrangements; and

(f)      provide access to paid leave.

Proposal 17–3       The Fair Work Ombudsman should develop a guide to negotiating family violence clauses in enterprise agreements, in conjunction with the Australian Domestic and Family Violence Clearinghouse, the Australian Council of Trade Unions and employer organisations.

Proposal 17–4       In the course of its 2012 review of modern awards, Fair Work Australia should consider the ways in which family violence may be incorporated into awards in keeping with the modern award objectives.

Proposal 17–5       In the course of its first four-yearly review of modern awards, beginning in 2014, Fair Work Australia should consider the inclusion of a model family violence clause.

Proposal 17–6       Fair Work Australia members should be provided with training to ensure that the existence of family violence is adequately considered in deciding whether there are ‘exceptional circumstances’ under s 394(3) of the Fair Work Act 2009 (Cth) that would warrant the granting of a further period within which to make an application for unfair dismissal.

Question 17–1       Section 352 of the Fair Work Act 2009 (Cth) prohibits employers from dismissing an employee because they are temporarily absent from work due to illness or injury. Regulation 3.01 of the Fair Work Regulations 2009 (Cth) prescribes kinds of illness or injury and outlines a range of other requirements. In what ways, if any, could the temporary absence provisions be amended to protect employees experiencing family violence?

Proposal 18–1       Safe Work Australia should include information on family violence as a work health and safety issue in relevant Model Codes of Practice, for example:

(a)      ‘How to Manage Work Health and Safety Risks’;

(b)     ‘Managing the Work Environment and Facilities’; and

(c)      any other code that Safe Work Australia may develop in relation to other topics, such as bullying and harassment or family violence.

Proposal 18–2       Safe Work Australia should develop model safety plans which include measures to minimise the risk posed by family violence in the work context for use by all Australian employers, in consultation with unions, employer organisations, and bodies such as the Australian Domestic and Family Violence Clearinghouse.

Proposal 18–3       Safe Work Australia should develop and provide education and training in relation to family violence as a work health and safety issue in consultation with unions, employer organisations and state and territory OHS regulators.

Proposal 18–4       Safe Work Australia should, in developing its Research and Data Strategy:

(a)      identify family violence and work health and safety as a research priority; and

(b)     consider ways to extend and improve data coverage, collection and analysis in relation to family violence as a work health and safety issue.

Question 18–1      What reforms, if any, are needed to occupational health and safety law to provide better protection for those experiencing family violence? For example, should family violence be included in the National Work Health and Safety Strategy?