Family violence-related leave

17.29 The ALRC recommends that as part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in this Report, the Australian Government should consider amending the NES with a view to including provision for additional paid family violence leave. The ALRC is of the view that there should be a core of basic requirements with respect to family violence leave, including that it should be paid, flexible and easily accessible where necessary, while containing sufficient safeguards to maintain the confidentiality of personal information and the integrity of the leave system.

Current leave entitlements under the NES

17.30 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.^[41] Section 107 of the Fair Work Act includes notice and evidence requirements relating to leave under the NES.^[42] 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.^[43] However, there are restrictions on the use of particular types of leave;^[44] and where family violence occurs over a prolonged period, people experiencing family violence may quickly exhaust their leave entitlements.

A need for family violence leave under the NES?

17.31 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 suggest that frequently those experiencing violence exhaust their existing leave entitlements, particularly where the violence occurs over a prolonged period.^[45] 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.

17.32 Employer organisations expressed significant concerns about the costs associated with the introduction of additional leave entitlements.^[46] 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’.^[47] As a result, the ALRC suggests that research, data collection and economic modelling are important precursors to the recommended review of the NES and determination of any quantum of leave.^[48] Further, in examining leave-related costs, the ALRC emphasises the need to factor in current monetary and non-monetary costs to the Australian economy and businesses associated with family violence.^[49]

17.33 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 as suggested in Chapter 15 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.^[50]

17.34 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.^[51] 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’.^[52]

17.35 Secondly, the introduction of family violence leave as part of the minimum safety net under the NES is likely to play an educative role.^[53] 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.^[54] 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.^[55]

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

Options for reform

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

17.38 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 suggests 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.^[56]

17.39 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.

17.40 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.^[57]

17.41 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.^[58]

Specific family violence leave

17.42 Stakeholders supporting 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.^[59]

Additional leave as a subset of personal/carer’s leave

17.43 Incorporating additional family violence leave into existing entitlements may create a ‘less threatening step’ for employees,^[60] 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.

17.44 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.^[61]

Basic requirements

17.45 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;^[62]
• 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;^[63]
• be accessible as consecutive or single days, or as a fraction of a day;^[64]
• 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;^[65]
• not be subject to a minimum employment or qualifying period, or to be accrued in advance;^[66]
• be paid;^[67] and
• be subject to verification of entitlement.^[68]

Complementary initiatives

17.46 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 has made a number of overarching recommendations such as with respect to the need for a national education and awareness campaign, and other initiatives.^[69]

Paid leave

17.47 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.^[70] 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’^[71] 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’.^[72]

17.48 In light of the focus of this part of the Report 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 has formed the view that any entitlement to family violence leave should provide for paid leave and, possibly, also additional unpaid leave.

Accessibility

17.49 Employees may need to access family violence leave in a range of circumstances. Accordingly, the ALRC suggests 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.

17.50 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

17.51 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.^[73] The Australian Human Rights Commission suggested that the ALRC consider the extension of family violence leave to those ‘assisting and supporting’ employees affected by family violence.^[74]

17.52 The ALRC agrees 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 suggests 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 CALD communities, the living arrangements and relationships of people with disability,^[75] and those in same-sex relationships.^[76]

17.53 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.^[77] 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.^[78]

17.54 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.^[79] 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.

17.55 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’.^[80] 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.^[81] 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

17.56 The ALRC is 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.^[82] The ALRC suggests 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.^[83]

17.57 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.^[84] 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.

17.58 Other stakeholders supported an entitlement of up to two days of leave per occasion.^[85] This approach would be in line with the enterprise agreement negotiated at the University of New South Wales.^[86] 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

17.59 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’.^[87] 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.

17.60 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.^[88]

17.61 As noted by the OAIC:

Where there is more than one acceptable way of demonstrating an entitlement it is often better practice to offer alternatives and give individuals the choice as to the personal information they provide. Providing choice as to the source of information enables individuals to exercise a level of control over their personal information and may assist in minimising barriers to disclosure.^[89]

17.62 Finally, providing employers information about what might constitute appropriate verification could form part of the national education campaign recommended in this Report.^[90]