The incidence of domestic violence appears to be on the increase and it is now a much discussed social issue in Australia. The statistics regarding domestic violence in Australia are horrifying – one in six women, and one in 20 men, have experienced violence from a current or former partner since the age of 15. Just in the last week there were two instances of serious injury from domestic violence reported by mainstream media.
Given the insidious and prevalent nature of this issue and the significant impact it has on sufferers working lives, the issue has been part of the 4-yearly review of modern awards. The question considered by the Fair Work Commission (“Commission”) is whether employees should be entitled to domestic violence leave in addition to the current leave requirements for annual and personal leave. The Australian Council for Trade Unions (“ACTU”) commenced proceedings in November 2016 before the Full Bench of the Commission to push for a new modern award entitlement of 10 days’ paid family and domestic violence leave and 2 days’ unpaid leave per occasion. The ACTU emphasised that providing this leave would make it easier for survivors of family and domestic violence to remain in paid employment and manage stressful and time consuming tasks like finding a new home and attending Court.
The Australian Industry Group appeared on behalf of the employers and argued that paid family violence leave should be dealt with at the enterprise level and not as part of the award safety net. The major concern for employers included the increased costs of introducing additional paid leave. It was argued that granting the ACTU claim could result in employers providing employees with 20% of the working year off with pay if all entitlements were accessed. However, in a report by Price Waterhouse Corporation in 2015 it was estimated the cost of lost production as a result of violence against women was $2.1b in 2014-2015. Furthermore, a 2015 survey by the Gendered Violence Research Network found that out of the 102 employers surveyed with a paid domestic violence clause in their enterprise agreements, an average of 43 hours was taken in the past 12 months, ranging between 8 and 202 hours.
At the moment, the Commission’s decision has been reserved. However, VP Watson prior to his retirement at the end of February 2017, took the unusual decision to publish his ruling separately before the other members of the Full Bench had done so. VP Watson found that the push to include family violence leave in modern awards should be rejected. His Honour was of the view that there was no doubt family and domestic violence is widespread in Australian society and employers should be aware of the problem and assist affected employees. He praised employers already supporting employees affected by domestic violence through the implementation of workplace policies. However, he ruled that the ACTU claim was different in nature and sought to introduce a form of leave that can be taken without prior approval, and is available in a broad and somewhat uncertain range of circumstances. He viewed this approach as having the potential of undermining the level of trust at the workplace and causing significant uncertainty and cost for employers. It was further noted that Australia had a relatively high safety net of terms and conditions and the leave being sought is not necessary to achieve a fair and relevant minimum safety net of terms and conditions of employment.
The two other members of the bench are yet to hand down a decision. However, Commission President Iain Ross has sought submissions from the parties to address whether the two remaining members could issue a decision together and whether combined with the VP Watson ruling that would constitute a Full Bench decision as per the requirements of the legislation or whether the legislation requires another member to be appointed given VP Watson’s recent retirement. If there is now a requirement to appoint a further member it raises the question: are the parties content to have the newly constituted Full Bench determine the application without a further hearing. President Ross heard the submissions from interested parties on 4 April 2017 and is expected to provide his decision regarding how the claim should proceed shortly.
Even though currently there is no legislative or other requirement for employers to provide domestic violence leave, employers in Australia are leading the way in providing employees such leave. A number of employers have elected to provide domestic violence leave to their employees such as Telstra, NAB, Virgin Australia and Price Waterhouse Coopers. There has also been a trend towards including domestic violence leave in enterprise agreements. By March 2016, it is reported that there were 1,234 current agreements with a domestic violence leave clause covering 1,004,720 employees. Furthermore, a number of male dominated workforces have also elected to introduce a variety of initiatives in relation to anti-domestic violence in their workplaces. For example, DP World Australia, who have over 2,000 employees of which 93% are male, have become a White Ribbon Accredited Workplace since November 2015.
It is interesting to note that the ACTU proposal allows both the victim and perpetrator of domestic violence to access the leave. This has caused significant controversy. A number of critics have complained that under the ACTU proposal, employers would be paying for perpetrators to take leave. However, Mr Simon Earle, CEO of METL, a large maritime training organisation which has as little as 2% to zero female employees argued that allowing perpetrators access to the leave may be part of the solution if it allows them to seek assistance and helps to stop the violence.
There are also a number of state governments considering the introduction of such leave for their public state workers. In particular, on 1 December 2016 the Industrial Relations Act 2016 was passed by the Queensland Parliament. It introduces significant changes to the industrial relations regime for Queensland state and local government employees including up to 10 days paid leave per year for victims of domestic and family violence. Additionally, the Council of Australian Governments (“COAG”) met on 9 December 2016 where a number of State leaders voiced their support for employers to provide appropriate workplace support to employees experiencing family violence. In this regard, they have agreed to review this issue at the next COAG meeting following the Commission’s final decision on the matter.
It is clear there is a marked shift in what the community may expect from their employers and many responsible employers are voluntarily incorporating domestic violence measures in their policies. It remains to be seen whether it will become a requirement rather than a voluntary choice.
We advise employers to consider what their organisation can do to assist employees affected by domestic violence. This may include the introduction of miscellaneous leave or domestic violence leave; initiatives designed to reduce the stigma associated with domestic violence; access to employer-funded employee assistance counselling programs; and the creation of a supportive and positive culture within the business. Employers should consider appropriate workplace training and the introduction of workplace policies in relation to how your organisation may support people involved with domestic violence and the process surrounding requests for flexible working arrangements.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.