Fair Work Act 2009 (Cth)

50. The Fair Work Act is the key piece of Commonwealth legislation regulating employment and workplace relations. It provides for terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment. The Act also creates a compliance and enforcement regime and establishes several bodies to administer the Act, including Fair Work Australia (FWA) and the Office of the Fair Work Ombudsman.

51. The Fair Work Act regulates ‘national system’ employers and employees.^[35] From 1 January 2010, all states other than Western Australia referred their industrial relations powers to the Commonwealth, essentially creating a new national industrial relations system. As a result, the national industrial relations system covers the Commonwealth, Commonwealth authorities and constitutional corporations,^[36] as well as:

• all other employment in Victoria, ACT and the Northern Territory;

• all other private sector employment in New South Wales, Queensland and South Australia; and

• all other private sector and local government employment in Tasmania.

52. The system does not cover:

• state public sector or local government employment or employment by non-constitutional corporations in the private sector in Western Australia;

• state public sector and local government employment in NSW, Queensland and South Australia; or

• state public sector employment in Tasmania.

53. Employment that is not covered under the national industrial relations system remains regulated by the relevant state industrial relations systems. However, some entitlements under the Fair Work Act extend to non-national system employees.^[37]

54. The Fair Work Regulations 2009 (Cth) address matters of detail within the framework established by the Fair Work Act. For example, the regulations provide additional definitions, explain the application of the Act and elaborate on certain terms and conditions of employment.

55. Neither the Fair Work Act nor the Fair Work Regulations have specific provisions dealing with family violence or the manifestation of family violence in the workplace. However, the Fair Work Act, oragreements and instruments made under the Act, might be amended or drafted to provide additional protection and support for victims of family violence. Possible reforms include:

• amending the National Employment Standards to provide an entitlement to flexible working arrangements on the basis of family violence and family violence leave;

• inserting family violence clauses in enterprise agreements;

• inserting a family violence-related matter in the allowable matters in modern awards; or

• inserting family violence as a specific ground of protection under the general protections provisions contained in the Fair Work Act.

National Employment Standards

56. The National Employment Standards (NES) enshrine 10 statutory minimum requirements that apply to all national system employees.^[38] The NES encompass areas such as working hours and arrangements, leave, and termination and redundancy pay. The NES are an absolute legislative safety net and cannot be excluded by an enterprise agreement or modern award.^[39] As a result, amendments to the NES would have a wide-ranging impact on the entitlements of employees experiencing family violence.

Flexible working arrangements

57. Under the NES, an employee who satisfies the service requirements^[40]—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 their employer change their working arrangements to assist with the care of that child.^[41] Section 65(5) of the Fair Work Act provides that such a request may only be refused on ‘reasonable business grounds’.^[42]

58. A number of issues arise in relation to this provision. First, in its current formulation the right is based on parental or child care-related responsibilities. However, stakeholders have suggested that the section could be amended to include other bases upon which an employee could request flexible working arrangements—for example, where they are experiencing family violence. Some overseas jurisdictions have enacted legislation which entitles victims of family violence to reduce or reorganise their working hours, change workplaces and make other flexible working arrangements.^[43]

59. Secondly, the current NES provision is only procedural rather than substantive. 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.^[44]

60. Thirdly, there are limited enforcement mechanisms available. 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.

61. The ALRC is interested in comments on whether experiencing family violence should be included as a basis upon which an employee should be entitled to request flexible working arrangements under the NES.

Leave

62. Under the NES, employees are entitled to a range of types of leave, including parental leave, annual leave, personal/carer’s leave, compassionate leave, community service leave and long service leave.^[45]

63. Currently, a victim of family violence may use a range of combinations of leave entitlements in order to take time off work for purposes related to family violence. An employee may access accrued annual or personal/carer’s leave and, in some instances, discretionary miscellaneous leave, where they need time, for example, to apply for a protection order or attend court proceedings, relocate, care for children or receive medical attention. However, this may mean that victims of family violence exhaust their leave entitlements, particularly where the family violence occurs over a prolonged period of time.

64. Consequently, in line with the approach taken in other jurisdictions, the ALRC is considering whether employees should be entitled to some form of special family violence leave and, if so, the circumstances and conditions for such leave. Considerations include: what evidence of family violence should be required, the number of days employees would be entitled to take and in what circumstances, and whether such leave should be paid or unpaid.

65. Entitlements to additional leave have already been introduced under family violence clauses included in some enterprise agreements and state awards, as a result, stakeholders have proposed that similar leave entitlements should be provided for under modern awards. Both these developments are discussed below.

66. A number of overseas jurisdictions have enacted legislation which 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.^[46]

67. The introduction of such provisions, as additional leave entitlements, may have an impact on business and on small businesses in particular. Employers may be willing to approve miscellaneous leave in circumstances where an employee requires additional leave because of family violence, without the need for ‘family violence’ leave.

68. Amending the NES would provide employees with a minimum statutory entitlement to family violence leave and would remove the discretionary element currently associated with the granting of leave for purposes related to family violence. This would help ensure that family violence is recognised and addressed within workplaces. The ALRC is interested in comments on whether there should be a minimum statutory entitlement to family violence leave and, if so, what form it should take.

Enterprise agreements

69. The law of employment, as it relates to the relationship between an individual employer and employee, has its basis in the common law, specifically the law of contract. The rights and obligations of an employer and an employee are generally governed by, and arise from, the terms of a contract of employment.

70. However, rights and obligations also arise from a range of other sources, including under legislation, the terms of which may prevail over the contract of employment. One such source is the Fair Work Act, which provides that there are several types of agreements, referred to as enterprise agreements,^[47] that can prevail over contracts of employment.^[48]

71. Enterprise agreements govern the terms and conditions of employment and can be made between one or more employers and either their employees, or one or more employee organisations.

72. The Fair Work Act lists several categories of matters which may, must or must not, be included in enterprise agreements:

• ‘permitted’ matters that may be included in an enterprise agreement—for example, terms about matters pertaining to the relationship between an employer and their employees or employee organisation, as well as deductions from wages and the operation of the agreement;^[49]

• ‘mandatory’ terms that must be included in an agreement—for example, terms in relation to flexibility and consultation;^[50] and

• ‘unlawful terms’ that cannot be included in an agreement or that are of no effect, such as terms that are discriminatory.^[51]

73. Section 202 of the Fair Work Act requires that every enterprise agreement must include a ‘flexibility term’, which allows the employer and the employee to make a specific ‘individual flexibility arrangement’ (IFA) that would vary the effect of the enterprise agreement to account for the employee’s particular circumstances.^[52] As a result, under every enterprise agreement a victim of family violence is entitled to negotiate an IFA with the employer, for example, to vary work arrangements to account for experiences of family violence.

74. In practice, however, concerns have arisen with respect to flexibility terms in the context of family violence, as IFAs are negotiated on an individual basis and some victims of family violence may not be in a position or feel able to negotiate an effective or useful IFA. This may be particularly so where victims fear disclosure of family violence or where their experiences have had an impact on their independence and confidence. This issue is also discussed below in relation to modern awards. The ALRC is interested in comment about the extent to which, in practice, IFAs are negotiated to account for the particular needs of victims of family violence.

Family violence clauses

75. Increasingly, bodies such as the Australian Domestic and Family Violence Clearinghouse (ADFVC) and unions have been involved in drafting family violence clauses and advocating for their inclusion in enterprise agreements.

76. In late 2010, family violence clauses were included in the enterprise agreements for the Surf Coast Shire and the University of New South Wales (UNSW) professional staff. Both agreements were subsequently approved by FWA.^[53]

77. The Surf Coast Shire family violence clause is the more expansive, including the following:

• recognising that proof of family violence may be required;

• establishing the confidentiality of any personal information disclosed;

• ensuring no adverse action can be taken if any employee’s attendance or performance suffers as a result of experiencing family violence;

• establishing lines of communication for employees;

• stating that a human resources contact will recommend to an employee’s supervisor possible forms of support for the employee;

• entitling employees to 20 days per year of paid special leave for absences related to family violence; and

• stating that the employer will allow employees’ other reasonable requests, such as flexible working arrangements or relocation.^[54]

78. The UNSW clause is more limited, providing a right to request:

• access to sick, carers and compassionate leave for family violence-related purposes;

• flexible working arrangements, including changes to working hours consistent with the needs of the work unit; and

• changes to work location, telephone number or email address.

79. The clause also states that proof of domestic violence may be required in the form of an agreed document issued by the police service, a court, a medical practitioner, a domestic violence support service or lawyer, or a counselling professional.^[55]

80. The ALRC understands that negotiations between unions and employers about the inclusion of family violence clauses are ongoing in a number of Australian jurisdictions.^[56]

81. Including family violence clauses in enterprise agreements would recognise and address the impact of family violence on employees and workplaces and provide enforceable entitlements. While such entitlements need to be clear and enforceable, clauses must also be sufficiently flexible to allow businesses to meet particular business needs while assisting employees who are victims of family violence.

82. Key concerns about the inclusion of family violence clauses in enterprise agreements include that, where such clauses are included, the line between what constitutes a workplace issue and a private issue may be unclear, making it difficult to define appropriate employer action. Further, existing provisions—for example with respect to leave entitlements and in some cases flexible work arrangements—may be considered sufficient to address difficulties faced by victims of family violence in the workplace.

83. Family violence clauses in enterprise agreements may be insufficient, in and of themselves, to respond to the needs of employees experiencing family violence. In order to support the effective operation of such clauses, there may be a need for a range of complementary workplace policies and procedures including:

• training;

• the availability of workplace counselling or referrals;

• codes of conduct and harassment policies;

• workplace safety plans; and

• informal and partnership-based initiatives.^[57]

84. In addition to seeking comment on the desirability of family violence clauses in enterprise agreements, the ALRC is also interested in hearing about complementary workplace policies that may assist in recognising and addressing family violence where it manifests in the workplace.

Awards

85. An award is an industrial instrument that sets out minimum terms and conditions in a particular industry or occupation in addition to any statutory minimum required. Under the national industrial relations system there are currently two main types of awards:

• modern awards; and

• award-based transitional instruments (including former federal and state awards) which are currently being reviewed.

86. Beginning in 2008, the Australian Industrial Relations Commission, replaced by FWA, conducted an award modernisation process aimed at reviewing and rationalising existing awards to create a system of ‘modern awards’.^[58] As a result of this process there are now 122 industry and occupation modern awards that commenced on 1 January 2010, many of which include transitional provisions.

87. FWA is currently reviewing remaining award-based transitional instruments that apply to a single enterprise and where the employer is a constitutional corporation, including federal awards created before 27 March 2006 and former state awards now incorporated under the national system (which became notional agreements preserving state awards).^[59]

88. In light of the ongoing award modernisation process and the fact that most national system employees are now covered by modern awards, the focus of this Issues Paper is on modern awards.

Modern awards

89. Under the Fair Work Act, a national system employee who is not covered by an enterprise agreement and is not a ‘high income employee’^[60] may be covered by a modern award.^[61]

90. A modern award is an industrial instrument that sets out minimum terms and conditions for a particular industry or occupation in addition to the statutory minimum outlined by the NES. A modern award cannot exclude any provisions of the NES but can provide additional detail in relation to the operation of an NES entitlement. In general, a modern award applies to employees in a particular industry or occupation and is used as the benchmark for assessing enterprise agreements before they are approved by FWA.

91. The Fair Work Act prescribes matters which must, must not, and may, be included under a modern award.^[62] In a family violence context, the matters of relevance that are usually included in a modern award include:

• type of employment—for example, full-time, part-time or casual;^[63]

• arrangements for when work is performed—for example, variations to hours of work, rostering and working hours;^[64]

• leave;^[65]

• procedures for consultation, representation and dispute settlement;^[66] and

• flexibility.^[67]

92. Under the current allowable matters there is some scope for a modern award to recognise and accommodate the needs of victims of family violence.

93. For example, as is the case with enterprise agreements, modern awards must include a ‘flexibility term’ allowing the employer and the employee to make a specific IFA which would vary the effect of the enterprise agreement to account for the employee’s particular circumstances.^[68] As a result, under a modern award victims of family violence are entitled to negotiate IFAs with their employer, for example, to vary their work arrangements in circumstances of family violence.

New allowable matter

94. In addition, the use of modern awards to address family violence might be addressed by adding a new allowable matter in modern awards. Section 139(1) of the Fair Work Act could be amended to include an additional allowable matter dealing with family violence. For example, a new allowable matter could refer to ‘any reasonable term to allow an employer to assist an employee who is experiencing family violence’.

95. The NSW Government recently announced that public servants will be entitled to five days special leave and use of other forms of leave for the purposes of responding to family violence, as well as flexible working arrangements under a new clause to be inserted into the Crown Employees (Public Service Conditions of Employment) Award 2009.^[69]The announcement followed a campaign by thePublic Service Association of NSW and the ADFVC to have the award varied to recognise the need to assist employees experiencing family violence.^[70] The ALRC is interested in hearing about any similar moves to amend awards.

96. If an additional allowable matter dealing with family violence was inserted into the Fair Work Act, an explanatory note or legislative example might provide useful guidance given the potential difficulty in interpreting the new allowable matter.

97. The ALRC welcomes comment on whether existing terms in modern awards are sufficient to respond to the needs of employees who are experiencing family violence, or whether an additional allowable matter relating specifically to family violence is desirable.

Unfair dismissal

98. Under the unfair dismissal provisions of the Fair Work Act,an employee is unfairly dismissed if the dismissal was ‘harsh, unjust or unreasonable’, was not consistent with the Small Business Fair Dismissal Code (if it applies), or was not a case of genuine redundancy.^[71]

99. Not all employees have access to unfair dismissal remedies under the Fair Work Act. Unfair dismissal is available to employees who have completed a 12-month or six-month period of employment with an employer^[72] and who are covered by a modern award, enterprise agreement or earn less than the ‘high income threshold’.^[73] Casual employees may only access unfair dismissal remedies if they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.^[74]

100. In light of the disrupted work history of many victims of family violence and the casualised nature of the victim labour force, there are concerns that existing unfair dismissal provisions may offer limited protection to many victims of family violence, given the qualifying requirements.

101. In considering whether an individual dismissal is harsh, unjust or unreasonable, FWA must consider a range of factors, and may consider any other matter it deems relevant. The ALRC is not aware of any case law in which family violence has been raised in claiming that a dismissal was harsh, unjust or unreasonable.

102. The terms of s 387 of the Fair Work Act may already be broad enough to cover consideration of family violence. The ALRC is, however, interested in comment about the extent to which an employee’s experience of family violence is or could be considered in unfair dismissal cases as part of the ‘harsh, unjust or unreasonable’ formulation in practice.

General protections provisions and anti-discrimination

103. Under the Fair Work Act, national system employees are entitled to a range of general workplace protections. Specifically, the Act:

• protects workplace rights, and the exercise of those rights;

• protects freedom of association and involvement in lawful industrial activities; and

• provides other protections, including protection from discrimination.^[75]

104. Part 3–1 of the Fair Work Act contains these general protections which, among other things, prohibit an employer from taking ‘adverse action’ against an employee or prospective employee on the basis of the employee having, exercising or not exercising, or proposing to exercise or not exercise, a ‘workplace right’, or to prevent the exercise of a ‘workplace right’.

105. Measures that may constitute ‘adverse action’ taken by an employer against an employee include dismissal, injury or discrimination, or, in the case of a prospective employee, refusing to employ or discriminating in the terms or conditions of offer,^[76] and threatening any of the above.^[77]

106. A ‘workplace right’ exists where a person:

• is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body;

• is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

• has the capacity under a workplace law to make a complaint or inquiry to a person or body to seek compliance with that workplace law or instrument, or in the case of an employee, in relation to their employment.^[78]

Discrimination

107. Section 351(1) of the Fair Work Act prohibits specific forms of ‘adverse action’ being taken for discriminatory reasons and outlines a number of grounds of discrimination. Similarly, 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. However, s 772(1)(f) is more limited than s 351(1) as it only applies to termination of employment, rather than ‘adverse action’ more generally.

108. In the context of family violence, potentially relevant listed grounds include sex, physical or mental disability and family or carer’s responsibilities. A victim of family violence may be able to pursue a claim of discrimination under ss 351(1) or 772(1)(f) of the Fair Work Act on the basis of:

• family responsibilities—for example, by arguing that family violence is a characteristic forming part of a victim’s family responsibilities;

• physical or mental disability—for example, where family violence has resulted in some impairment or disability and the victim is subsequently discriminated against on that basis; or

• sex—in the case of women, by arguing that family violence is a ‘characteristic generally pertaining to’ women.

109. However, it may be difficult for employees experiencing family violence to claim discrimination on the grounds discussed above. In particular, women who are embarrassed about a physical or mental disability resulting from family violence may be unwilling to use it as the basis for a discrimination claim.

110. In light of these difficulties, should the status of an ‘actual or perceived victim of family violence’ be included as a separate ground of discrimination under ss 351(1) and 772(1)(f) of the Fair Work Act?

111. Several overseas jurisdictions have enacted legislation which prohibits employers from terminating an employee’s employment or otherwise discriminating against them where the employee is, or is perceived to be, a victim of family violence, or where they take time off work, for example, to testify in a criminal proceeding, seek a protection order or seek medical attention related to experiences of family violence.^[79]

112. However, for the purposes of s 351(1), the Fair Work Act only prohibits employer action on grounds that are defined in ‘any anti-discrimination law in force in the place where the action is taken’.^[80] As a result, 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 federal, 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.

113. The question of whether family violence should be included as a separate ground of discrimination under anti-discrimination laws falls outside the Terms of Reference for this Inquiry. The consolidation and harmonisation of federal anti-discrimination laws is one of the initiatives proposed in Australia’s Human Rights Framework and currently forms the basis of a project being undertaken by the Australian Government.^[81] It is not clear whether the possible inclusion of new grounds of discrimination will be considered as part of this project.

114. The ALRC is interested in comments on the usefulness of the existing general protections provisions of the Fair Work Act in protecting victims of family violence, the potential inclusion of family violence as a specific ground of discrimination under the Fair Work Act, and the desirable formulation of any such ground.

Temporary absence due to illness or injury

115. Section 352 of the Fair Work Act prohibits employers from dismissing an employee because they are temporarily absent from work due to illness or injury of a kind prescribed by the Fair Work Regulations.

116. A prescribed illness or injury exists if the employee:

• provides a doctor’s certificate or statutory declaration for the illness or injury within 24 hours, or within a reasonable period in the circumstances; or

• is required by the terms of a workplace instrument to notify their employer of an absence from work and to substantiate the reason for the absence, and has complied with those terms; or

• has provided the employer with evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97 of the Fair Work Act for the taking of paid personal/carer’s leave for a personal illness or injury.^[82]

117. An illness or injury is not a prescribed kind of illness or injury if:

• the employee’s absence extends for more than three months, or the total absences of the employee amount to more than three months within a 12-month period; and

• the employee is not on paid personal/carer’s leave for a purpose mentioned in s 97(1) of the Fair Work Act for the duration of the absence.^[83]

118. Similarly, s 772(1)(a) of the Fair Work Act prohibits employers from terminating the employment of non-national system employees for reasons including temporary absence from work because of illness or injury of a kind prescribed by the Fair Work Regulations.^[84] The temporary absence provisions under ss 352 and 772(1)(a) of the Fair Work Act only apply in situations involving termination of employment and are both civil remedy provisions.

119. For the purposes of the temporary absence provisions, the type of evidence an employee may provide to substantiate the reason for their absence includes: a medical certificate; statutory declaration; and other forms of evidence that would satisfy a reasonable person that the leave is taken for the reasons requested or specified. These appear to be sufficiently broad to ensure that victims of family violence could provide evidence of their family violence-related illness or injury to satisfy the temporary absence requirements.

120. Under ss 352 and 772(1) of the Fair Work Act, victims of family violence who have their employment terminated while they are absent from work as a result of a family violence-related illness or injury are entitled to make an application to FWA to deal with a general protections or unlawful termination dispute. The ALRC would be interested in comment on whether, in practice, these sections are used and whether they provide a sufficient basis for victims to make such applications.