Original Article: Alison Freeman, PCC Employment Lawyers | Jan. 25, 2018
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.
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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