Growing support for a workplace response to domestic violence

Violence against women is now recognised as a serious and widespread problem in Australia. Whilst awareness has increased of domestic violence as a community issue, there is still much to be done to support victims. 2017 saw an increase in support for a workplace response to family violence, through the inclusion of family and domestic violence leave in all modern awards, or the National Employment Standards. At a minimum, unpaid leave looks likely to be inserted into modern awards in 2018, meanwhile the unions, Greens and Labor Party continue to push for paid leave.

What is domestic violence leave and why is it needed?

Family and domestic violence leave provides victims of violence by a family member time off work to attend legal proceedings, counselling, and medical appointments, as well as relocating or making other safety arrangements. Paid family and domestic violence leave can ensure financial security and support victims escaping abusive relationships.

Some large private sector employees, such as Telstra, KPMG, Woolworths, IKEA, NAB, Westpac and PwC, currently provide paid family and domestic violence leave entitlements. In addition, most State governments have domestic violence protections for their public servants, some of which include paid leave. However, the majority of Australian employees are reliant on a modern award for their minimum entitlements, and the unions are pushing to standardise workplace support.

ACTU’s application for paid domestic violence leave

In July 2017, a bid by the Australian Council of Trade Unions (ACTU) to have 10 days paid leave available to Australia’s two million award dependent employees, was rejected by the Fair Work Commission.

The Commission acknowledged that domestic violence is a significant problem in society, in the workplace, and for the national economy. It noted the inability of existing workplace entitlements to meet the needs of employees who experience domestic violence as their need for leave is often urgent and they may not able to request annual leave or flexible work arrangements at short notice. However, the Commission was not satisfied that ten days paid domestic violence leave was necessary to meet the objectives of the modern award and concluded that a cautious approach should be taken to the introduction of domestic violence leave, citing concerns over increased employer’s costs and the lack of data or evidence regarding the operation of such leave.

However, the Commission formed the preliminary view that an unpaid leave entitlement should be included in modern awards to enable victims to deal with the consequences of the violence. The Commission is currently reviewing submissions on the drafting of such a provision, such as what quantum of unpaid leave is appropriate, who can access it, and notice and evidence requirements.

Introduction of the Greens bill

In late November 2017, The Greens released draft legislation to introduce 10 days’ paid family and domestic violence leave as a new entitlement in the National Employment Standards (NES). The Australian Labor Party had previously committed to five days paid leave in the NES, but in response to the Greens bill, in early December, they raised their commitment to ten days.

Resistance to the introduction of paid domestic violence leave

The Coalition and some employer representatives have resisted the extension of paid family violence leave to all employees in Australia, through inclusion in modern awards or the NES. Their primary concern is that paid domestic violence leave would impose a significant and undue expense on employers, with the Australian Chamber of Commerce and Industry (ACCI) claiming it could cost employers as much as $205m to create just one day of domestic violence leave per worker per year.

A common objection from employer groups is that domestic violence is a societal issue, not a problem that is created by employers, and as such, a government funded national system of domestic violence leave is required, in the same manner as paid parental leave. Other opponents of the proposal argue domestic violence leave is just another union shakedown, and any paid family violence leave provisions will be abused to justify non-necessary work absences, i.e. it will become the new “sickie”.

There is also a concern that the current proposals might drive a further divide between the entitlements of permanent and casual employees. The paid family violence leave provisions currently available in some enterprise agreements generally only cover employees in full time or part time employment, when casual employees facing violence do not even have access to paid annual or sick leave entitlements. The ACTU submits that 51% of award-covered women are employed as casuals, so it is essential that casuals are included in any amendments. Otherwise, paid family violence leave will only serve to further incentivise employers toward casualisation of the workforce.

There is also recent research which challenges the effectiveness of paid domestic leave policies, with the conversion from policy into practice falling short. A survey of HR professionals published by the Australian HR Institute in September 2017 concluded that Australian workplace domestic violence policies don’t translate into practice. Only 14% of respondents currently report any form of specific training for supervisors and managers to help victims disclose domestic violence, and only 18% have any form of manager training to recognise victims of domestic violence.

Arguments in response

Research by the Centre for Future Work at the Australia Institute suggests that the costs of paid domestic violence leave is unlikely to impose a noticeable increase in labour costs for employers, and any costs are likely to be largely offset by benefits such as reduced turnover and improved productivity. Only about 1.5% of female employees and around 0.3% of male employees are likely to utilise paid domestic leave provisions, costing $80m to $120m per year. The massive discrepancy in cost compared the ACCI’s modelling, derives from utilisation assumptions, with the ACCI’s figures based on 25% of female and 10% of male workers accessing the leave each year. The ACCI utilisation rate is far greater than what has been experienced by employers who already have paid domestic leave provisions in place.

Supporters of paid family violence leave argue that there would be two tests to ensure the system is not open to abuse, and would restrict the incidence of leave-taking to subset of those workers who actually experience domestic violence. Firstly, the leave must be related to specific activities or events related to the violence, to support employees in their efforts to escape the violence. It’s not intended as compensatory leave for victims. Secondly, documentary evidence must be provided regarding the nature and timing of those events if requested, such as a note issued by police, a doctor, or a lawyer, for example.

With regards to casuals, the unions bid for paid leave to be included in the modern awards, and the Greens’ bill regarding the NES, both provide for paid leave entitlements to be extended to casual employees. Under the ALP’s proposal, casual workers would be entitled to unpaid leave.
Conclusion

The argument that paid family and domestic violence leave is too expensive has been refuted by the research which considers the actual experience of several Australian employers who have already implemented paid leave policies. It shows that in practice, paid leave entitlements are not frequently utilised, and any incremental costs are offset by the broader economic benefits.

The complexity of family violence requires a strategic approach by all levels of government, business, and the community. Developing a workplace response to domestic violence also requires support measures besides paid leave, such as training for managers to help victims disclose domestic violence, referral of employees to appropriate domestic violence support services, flexible work arrangements; and no adverse action or discrimination of the victims of domestic violence. Unless workplaces take measures to promote disclosure, and managers are trained to support their employees, the stigma already involved in revealing domestic violence is unlikely to dissipate, and the purported benefits and costs of providing paid family and domestic violence leave are unlikely to be realised in any event.

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January 27

Domestic Violence Leave

Like many, I was very pleased to see Rosie Batty named as Australian of the Year for her work in raising awareness and promoting the prevention of domestic violence. There are many working tirelessly in this field, but in the context of her own personal tragedy Ms Batty’s work is particularly special. Few of us would be able to go on after experiencing a tragedy such as hers, but to have the strength to reflectively use her experiences to prevent others sharing her own loss is truly courageous, and she is a most deserving recipient of the award in my opinion.

Behind the scenes, in workplace law, the issue of domestic violence has been approached in a less satisfactory matter. As a major social epidemic, it requires non-political and bi-partisan cooperation from government, employers and unions alike. But unfortunately domestic violence seems to have been distilled down to a stereotypical arm-wrestle between employers and unions over the usual entitlement – paid leave.

Domestic violence leave (‘DV leave’) is a relatively new concept which has enjoyed rapid growth over the last 5 years. Currently, nearly 2 million Australian workers are covered by DV leave, as a result of Union collective bargaining. The ACTU are now pushing hard for the statutory inclusion of a minimum of 10 days’ DV leave for all full time employees, pro-rata entitlements for all part time employees, and have lodged a claim in the Fair Work Commission. This article by Jenna Price outlines some of the developments in greater detail.

I agree with Ms Price’s sentiments regarding domestic violence, but do not agree that paid leave will achieve a reduction in domestic violence. Having spent nearly 20 years negotiating with unions, I have become accustomed to their unique attitude to paid leave as not only the primary goal of negotiation, but as a pancea for all ills – the idea that any problem or challenge faced by employees in their personal lives will be overcome by their employers paying them to stay away from work. From the employers’ perspectives, the cost of leave amounts to not only the actual cost of wages paid, or replacement staff, but is compounded by loss of productivity and business cohesion. I have worked on Enterprise Agreements where some full time staff members were entitled to as much as 75 days paid leave. If all of this is taken, it amounts to the employee being absent on average for nearly 2 days out of 5. Most full time employees across a variety of industries would agree that this type of absence makes it very difficult to achieve productivity by their own standards and goals, let alone those standards required by their employer.

Further, there would seem to be a logical incongruence with a contention that DV leave will ‘fix’ domestic violence. The contention would seem to be that additional time off will be to avoid coming to work with bruises, or to attend court or counselling without loss of pay. This seems to be an exclusively reactive solution, aimed only at ameliorating the consequences of domestic violence, rather than attacking the root cause. Indeed, there is an implied suggestion that DV leave can actually be a way to hide domestic violence from colleagues, which I can’t accept as a positive goal. Ms Price quotes the costs of domestic violence on the Australian community as nearly $14 billion, but nowhere is there a suggestion of how DV leave will reduce the incidence of Domestic Violence. In fact, if we increase paid leave on its account then the attributable costs will only increase further.

But the key unsatisfactory issue to me is that DV leave only benefits those who are in full time or part time employment. These people do not represent the whole community, nor even the whole workforce. It never has, and increasingly never will. The National Employment standards already provide for 10 days personal leave, and 20 days annual leave for full time employees, as well as provisions for flexibile workplace arrangements for victims of domestic violence. Whether or not this is adequate is debatable, but not the real issue here. The real question is should we be arguing for more leave entitlements for full time employee victims of domestic violence, when casual employee victims of domestic violence currently have nothing at all? While domestic violence occurs across all categories of society, there is no question it has particular prevalence among sections of the community that have already been marginalized and casualized by the Australian workforce. Paid DV leave will only serve to further drive the wedge between those employees with full time benefits and those without. Diverting more money from employers toward only one section of the workforce, and further incentivising those employers toward casualization, is not an equitable solution to a social problem of this magnitude. So if we would like to see employers kicking the tin a bit harder, then let’s come up with a solution for employer involvement which spreads the benefits fairly, and is aimed at pro-active rather than reactive measures.

Firstly, s 351 of the Fair Work Act, which provides the grounds under which employees should be protected against unlawful adverse action at work, should be amended to include victims of domestic violence. This would protect full time, part time, casual workers, employees in probationary period, and even prospective employees, from being adversely treated because they or members of their family are victims of domestic violence. Once alleged, the onus is on the employer to prove this action has not been taken for this reason. This would be a great starting point, which would cost the government and tax payer nothing. Further, the true costs of this provision would be borne exclusively by the employers that are at fault.

Secondly, we should acknowledge that preventing domestic violence is best achieved by keeping people away from the danger (which by definition is at home), not by keeping them away from work. Based on my rough estimates, 10 days mandatory Domestic violence leave would cost employers on average approximately $50 per year per employee. (Based on Ms Price’s contention only about 1% of employees made use of leave.) If this could be levied across the entire workforce, couldn’t this money be spent better on the provision of free counselling, accommodation centres, support or legal advice through the workplace? $50 per employee throughout the Australian workforce would go a long way for those in need, irrespective of whether they are full-time, part-time, casual, or unemployed. When the Government, employers, and unions start working together in this direction, the potential for real change is huge. But as long as the issue is fought along these traditional and anachronistic industrial relations battle lines, genuine solutions will continue to elude us.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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