General protections

17.135 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.^[122]

17.136 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’.

17.137 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,^[123] and threatening any of the above.^[124]

17.138 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.^[125]

Discrimination

17.139 Section 351(1) of the Fair Work Act prohibits specific forms of ‘adverse action’ being taken for discriminatory reasons:

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.^[126]

17.140 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. 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.

17.141 However, employees experiencing family violence may face difficulties in relying on these grounds. As a result, an issue in the context of this Inquiry is whether ss 351(1) and 772(1)(f) of the Fair Work Act should be amended to include the ‘status of an actual or perceived victim of family violence’ as a ground of discrimination. There are difficulties associated with such a change because, for the purposes of s 351(1), s 351(2) only prohibits employer action on grounds that are defined in ‘any anti-discrimination law in force in the place where the action is taken’. Consequently, in order to include family violence as a separate ground under s 351(1), either s 351(2) would need to be amended, or family violence would need to be included as a ground under other anti-discrimination law.

17.142 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 forms the basis of a project being undertaken by the Australian Government that commenced in 2010.^[127]

17.143 It is instructive to note that several overseas jurisdictions have enacted legislation that 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.^[128]

Submissions and consultations

17.144 In the Employment Law Issues Paper the ALRC asked about the effectiveness of the current grounds under ss 351(1) and 772(1)(f) of the Fair Work Act 2009 (Cth), where an employee has been discriminated against for reasons arising from their experiences of family violence, and whether family violence should be inserted as a separate ground of discrimination.^[129]

17.145 Overall, stakeholders expressed the view that employees experiencing family violence are ‘subject to direct and indirect adverse treatment in the work place, as a result of their experience of’ family violence. The AHRC submitted that ‘most commonly the adverse treatment manifests as being denied access to leave, flexible work arrangements or their employment being terminated’.^[130]

Protection provided by current provisions

17.146 Some stakeholders emphasised the limited protection ss 351(1) and 772(1)(f) currently provide for employees who are discriminated against on the basis that they are experiencing family violence.^[131]

17.147 In particular, stakeholders expressed the view that it is difficult for a victim of 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.^[132] The AHRC noted:

It may not always be possible for an employee to link adverse action or a dismissal which is in truth based on domestic violence to a ground of discrimination covered by FWA. For example, 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.^[133]

17.148 The NNWWC illustrated the limited protection afforded by the current provisions through a case study.^[134]

17.149 Victoria Legal Aid emphasised that

these limitations could also compound feelings of powerlessness on the part of a victim/survivor of family violence, if the focus is moved to, for example, injury or illness, rather than family violence itself.^[135]

17.150 The ADFVC also noted the limited coverage of the general protections provisions, which do not cover contract workers and highlighted that ‘to date there have been few decisions in this area’ and that as the majority of complaints ‘ settle at conciliation there is little publicly available data on the grounds of individual complaints’.^[136]

17.151 Finally, several stakeholders highlighted the difficulty raised by s 351(2), but expressed mixed views as to the meaning and effect of the subsection. Some 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 this case, in order for family violence to be included as a separate ground under s 351(1) of the Fair Work Act, they suggested 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.^[137]

17.152 The other view expressed, with some support in 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’.^[138]

New ground of discrimination?

17.153 The proposed insertion of family violence into sections 351(1) and 772(1)(f) of the Fair Work Act as a separate ground of discrimination received widespread support from stakeholders.^[139]

17.154 DV Victoria and DVRC Victoria submitted 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’.^[140] Similarly, the ADFVC submitted that:

express protection of family violence under these provisions accords with the underlying objects of the Fair Work Act which include: enabling fairness and representation at work and the prevention of discrimination by … protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms.^[141]

17.155 In part, stakeholders expressed support on the basis that it ‘should not be necessary for victims of family violence to engage in complex legal analysis to demonstrate discrimination under’ the existing grounds.^[142]

17.156 In addition, submissions also highlighted that the inclusion would be likely to provide additional compliance incentives for employers, including in light of the FWO’s role in investigating discrimination,^[143] the applicability of civil penalty provisions^[144] and the availability of injunctions to prevent adverse action or unlawful termination.^[145]

17.157 The Redfern Legal Centre noted that some of the amendments proposed in this Discussion Paper, primarily in relation to family violence leave and flexible working arrangements, ‘would expand the workplace rights on which an adverse action claim under Part 3–1 could be based’.^[146]

17.158 Victoria Legal Aid and the ADFVC highlighted that several overseas jurisdictions have incorporated protection for victims of family violence under anti-discrimination legislation and suggested that ‘Australia should follow international best practice in this area’.^[147]

17.159 Some stakeholders expressed the view that the inclusion of any new ground must be accompanied by an education campaign in relation to family violence as a workplace issue.^[148]

17.160 As a related matter, and in some views as a precondition, a number of stakeholders also expressed support for the inclusion of family violence as a protected attribute under Commonwealth, state and territory anti-discrimination legislation.^[149]

17.161 Finally, ACCI expressed the view that:

The existing laws have gone through an extensive consultation process and do provide appropriate protections for employees. The general protections provisions have removed the ‘dominant purpose’ test which make it easier on an aggrieved person to make a complaint, with the onus on the employer to prove that they did not take ‘adverse action’ for a proscribed reason. ACCI is unaware of any case whereby a person has relied upon family or domestic violence grounds under the former legislation or the Fair Work Act 2009.^[150]

ALRC’s views

17.162 The ALRC acknowledges that some victims of family violence are subject to discrimination and adverse treatment in the workplace as a result of their experiences of family violence and that current general protections provisions under the Fair Work Act offer victims limited protection.

17.163 However, the general protections provisions under the Fair Work Act do not operate in isolation and are necessarily linked to Commonwealth, state and territory anti-discrimination legislation.

17.164 The Australian Government is currently consolidating and harmonising Commonwealth anti-discrimination laws, as well as considering the inclusion of new grounds. The ALRC is aware of the important role played by the AHRC in informing this process, and in providing an evidence base upon which the Government can consider the inclusion of new grounds.^[151]

17.165 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. However, the ALRC suggests that, in light of the above, the AHRC may wish to consider examining the possible basis upon which status as an ‘actual or perceived victim of family violence’ should be included as a ground under Commonwealth anti-discrimination law in the future.

17.166 In addition, as outlined above, the Government has undertaken to conduct a post-implementation review of the Fair Work Act by January 2012. The ALRC is conscious of the role played by the general protections provisions and the objects underlying their introduction and considers review of the general protections provisions is a systemic issue best conducted in the course of this review.

17.167 Consequently, in light of these processes, and conscious of the need for the ALRC to consider proposals to promote consistency, uniformity and complementary Commonwealth, state and territory laws,^[152] rather than making a proposal about the inclusion of a family violence-related ground in the general protections provisions of the Fair Work Act, the ALRC considers it may be more appropriate for this issue to be considered in the course of the post-implementation review as well as in the context of new developments in Commonwealth, state and territory anti-discrimination law.

Temporary absence due to illness or injury

17.168 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.

17.169 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.^[153]

17.170 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.^[154]

17.171 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.^[155] 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.

17.172 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.

Submissions and consultations

17.173 In the Employment Law Issues Paper, the ALRC expressed the view that where an employee was temporarily absent from work due to a family violence-related illness or injury, the evidentiary requirements 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 requirements.

17.174 The ALRC also outlined that 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 invited stakeholder comment on whether, in practice, these sections are used and whether they provide a sufficient basis for victims to make such applications.^[156]

17.175 While a limited number of stakeholders responded to this issue, those who did expressed the view that the temporary absence provisions are not sufficient to protect employees who are experiencing family violence as they

do not provide an explicit statement protecting the rights of victims of family violence, nor are they broad enough to encompass all eventualities that may arise in relation to family violence.^[157]

17.176 The ADFVC, DV Victoria and DVRC Victoria submissions emphasised that the current provisions do not make provision for the ‘non-health related elements of family violence’.^[158] Throughout the Inquiry, stakeholders have also expressed concern about the tendency to ‘pathologise’ family violence.^[159]

ALRC’s views

17.177 If Proposals 16–3 and 16–4 are adopted, reg 3.01 of the Fair Work Regulations would need to be amended toensure that family violence leave (as a subset of personal/carer’s leave) is considered for the purposes of determining whether a prescribed illness or injury exists or does not exist.

17.178 If proposal 16–2 is adopted, creating a separate category of leave, the ALRC suggests that the Government would need to consider whether amendment to the Fair Work Regulations would be appropriate in those circumstances.

17.179 The ALRC would be interested in stakeholder comments on any other ways in which the temporary absence provisions could be used or amended to protect employees who are victims of family violence.