Access to Leave from Work for Domestic Violence in Australia

Country: Australia
Body: Fair Work Commission
Case number: [2017] FWC 5445
Year of judgement: 2017

Law

Four-yearly review of modern awards under section 156 of the federal Fair Work Act 2009.

Reasoning

Building on the success of collective bargaining for clauses supporting workers facing domestic and gender-based violence (GBV), and concerned for female and male workers not covered by agreements, the Australian Council of Trade Unions (ACTU) put a case before the Fair Work Commission (FWC, Australia’s national industrial tribunal) in 2016 during the scheduled four-yearly review of modern awards for the inclusion of paid domestic violence leave in modern awards. Public sector unions had already been negotiating domestic violence rights at work with Australian State governments for a decade, and still now have varied awards, negotiated agreements or introduced guidelines for employers to provide domestic violence pay and support to workers of both sexes.

The ACTU claim defined family and domestic violence leave as “any violent, threatening or other abusive behaviour by a person against a current or former partner or member of the person’s family or household”. The ACTU’s claim aimed to provide all employees with a right to 10 days paid family and domestic violence leave per year, which does not accumulate, and if the leave is exhausted, up to two days of unpaid family and domestic violence leave on each occasion. The leave would be for the “purpose of attending to activities related to the experience of being subjected to family and domestic violence”. The proposed clause also dealt with notice and evidentiary requirements.

Success before the FWC would have extended coverage to workers not covered by agreements and set a national benchmark. A decision on the case was expected in 2017 but FWC proceedings were extended because a Vice President had released his (negative) decision before the other Full Bench members had finalized their decisions (Workplace Express, Saturday 29 April 2017).

The decision delivered in Melbourne on 3 July 2017 ([2017] FWCFB 3494) gave rise to mixed opinion about the success of the case, when other FWC members delivered their preliminary views expressed in the majority decision that “all employees should have access to unpaid family and domestic violence leave” (emphasis added, [2017] FWCFB 3494 at [6]). Moreover, a number of the employer organizations with standing in the case before the FWC reserved their right to oppose any provision even of unpaid leave at the hearing of this matter. In that decision it was argued that a modern award clause was needed to encourage collective bargaining on the issue. The FWC stated that “There is no evidence before us that would lead us to conclude that the provision of paid family and domestic violence leave would discourage collective bargaining. We note that the inclusion of parental leave in the NES (national employment standards, as part of modern awards) has not been a disincentive for bargaining about superior entitlements in collective agreements. However, we are unable to conclude that the inclusion of such an entitlement would encourage collective bargaining. We consider this to be a neutral factor in our consideration” (op.cit. at [78]).

Regarding the argument that such a model clause was needed to promote social inclusion through increased workforce participation, the FWC demonstrated an understanding of the gender equality implications of GBV spilling into the workplace: “We accept the ACTU’s submission that the provision of paid family and domestic violence leave would promote social inclusion. We accept the evidence, which was largely unchallenged, about the impact of family and domestic violence on employees’ workforce participation and, in particular on women’s workforce participation” (op.cit. at [82]).

Regarding the likely impact of any exercise of a modern award clause on business, including on productivity, employment costs and the regulatory burden, the FWC accepted that it was unable to assess the impact of any such clause on employment costs. The FWC noted that it was unfortunate that none of the studies to date have revealed the extent to which employers informally or formally provide such leave or the extent to which employees access existing entitlements for family and domestic violence leave. It is therefore no surprise that the FWC concluded that “… the provision of paid leave will increase costs to employers and that given the lack of data, the impact on employers of that increase in costs is difficult to assess. This supports our conclusion that we should take a cautious approach to the introduction of family and domestic violence leave, particularly paid family and domestic violence leave” (op.cit. at [98] and [99]).

Decision

In October 2017 the FWC organized conferences to discuss the content of the proposed model domestic violence clause. The conferences were attended by representatives from powerful stakeholders within Australia: ACTU itself, the Australian Industry Group, Australian Chamber of Commerce and Industry, Australian Meat Industry Council, National Road Transport Association, Pharmacy Guild of Australia, Master Electricians Australia, and the Community and Public Sector Union. The outcome again contained good and bad news.

On the one hand, unpaid domestic violence leave was apparently accepted once and for all if the preliminary views were to be followed. After hearing views, the FWC concluded that: “In the event that the Full Bench adhered to the preliminary view expressed in the majority decision and determined that there should be a model unpaid family and domestic violence leave term then the conference parties propose the [compromise] model term attached”.

That model term includes the following acceptance of unpaid domestic violence leave (for victims but not perpetrators): “An employee experiencing family or domestic violence may access unpaid leave if it is necessary to deal with the impact of the family and domestic violence and it is impractical for the employee to do so outside their ordinary hours of work. Note 1: The entitlement to take unpaid leave only applies to an employee subjected to family and domestic violence. Note 2: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services”.

On the other hand, some issues remained unresolved: the entitlement of part-time and casual employees, and what was to be the quantum of unpaid leave per annum, remain contested.

Relevance of the case

This case established the link between domestic violence and the workplace, which is now firmly part of the domestic and global debate. Despite evidence that Australian unions and employers were already engaging in collective bargaining to protect women (and men) employees from spillover effects of domestic (or intimate partner) violence and despite recognizing that the matter is a workplace/labour relations issue, the FWC appears to have merely recognized that UNPAID leave to attend to domestic violence situations is a possibility. The FWC noted that the stakeholders agreed on a clear definition of what that leave could cover. But the quantum of leave (some countries already have statutory entitlement to 10 days, such as the Philippines under section 43 of Republic Act No. 9262) and the extension of this entitlement to non-full-time workers, the majority of whom are female, remain contested. Ruling out having a national employment standard in all awards that would establish a right to take paid leave abandons most workers in Australia to voluntary negotiations on the issue. This highlights the importance of collective bargaining frameworks and practice that are gender-responsive, and that can push for solutions to 21st century workplace problems where legislatures and courts shy away from recognizing rights that promote gender equal outcomes for workers.

Moreover, if this case had given a clearer message, it could have enriched the international debate. For example, in June 2018 the International Labour Conference will hold the first discussion of an international labour standard on gender-based violence and harassment at work.1 While a few recent international labour standards contain references to specific groups of workers at risk of gender-based violence in general, such as domestic workers, persons living with HIV and indigenous peoples, and while the key ILO treaty on workplace equality – the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) – has been interpreted to cover GBV, the international tripartite (governments, worker and employer representatives) stakeholders have realized that the time is ripe to adopt a new framework in international labour law to prevent and protect such situations explicitly. The 2017 report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR, the body of independent experts established to monitor how States apply ratified ILO treaties in law and in practice) contained no less than 15 observations referring to sexual harassment and abuse as violations under Convention 111. CEACR’s 2018 report contains a similar number of such references. The Australian FWC has moved the comparative labour law debate forward by establishing the link between domestic violence and the workplace.

Practical Implications of Decision

Violence in and out of work, both domestic violence and sexual harassment, are violations of human rights and impact heavily in the workplace. All forms of violence result in a high cost for workers, employers and society in general in lost productive time, injuries, complaints, staff turnover, loss of skills and reputational risk. While the discourse to date has been centred around an environment of increased attention to domestic violence in national actions plans under the auspice of UN and regional instruments, as well as in the 2030 Agenda and the Sustainable Development Goals, the relevance in the workplaces will finally receive appropriate attention from ILO member States at the 2018 Session of the International Labour Conference. Apart from the global implication, the domestic situation in Australia leaves it for workers’ organizations to bargain collectively with employers on this workplace issue. It is to be hoped that the agreed areas of the issue, highlighted in the 2017 Statement, will give guidance to the parties.

 

 

Summary prepared by Jane Aeberhard-Hodges, Senior Research Associate, UNRISD, for Social Protection and Human Rights.

 

 

Show 1 footnote

  1.  See the background report: ILC, Ending violence and harassment against women and men in the world of work, ILC, 107th Session, Report V(1), (ILO, Geneva, 2018).
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