One size can’t fit all in sensitive domestic violence leave case

As part of the Fair Work Commission’s 4 Yearly Review of Awards, the ACTU is pursuing an industrial claim for all awards to be varied to give employees who are experiencing family or domestic violence an entitlement to up to 10 days of paid family and domestic violence leave per year. Both permanent and casual employees would be entitled to the paid leave.

Ai Group is opposing the unions’ claim. The role of employers in supporting employees who experience family and domestic violence is a difficult issue given community sensitivities and the fact that employers have different arrangements and perspectives. Ai Group is concerned that the unions’ claim would entrench a “one size fits all” approach in the award system.

Some key points about family and domestic violence and the ACTU’s claim are:

  • Family and domestic violence is a community problem. Federal and State governments, police forces, courts, community services organisations, health professionals, the legal profession, the media, employers, employees and many others in the community, all have roles to play in addressing the problem.
  • The problem is currently receiving considerable attention by the Federal and State Governments.
  • Ai Group supports the many programs and forms of assistance that have been implemented by governments, police forces, courts, community groups, and others to address the problem.
  • Ai Group supports appropriate initiatives to educate employers about the problem of family and domestic violence and the role that employers can play in assisting employee victims, e.g. through company human resource policies and flexible work arrangements. However, the key to success with this important issue is to engage with employers in a positive way.
  • Employers are regularly faced with the impacts of social problems that affect the workplace and the lives of their employees, such as mental health issues, relationship breakdown, drug dependence, and crime generally. Domestic violence is one of many social problems that can have a serious impact on employees.
  • Employers have different capacities to provide support to employees experiencing family or domestic violence, yet the ACTU’s claim would impose a universal and prescriptive approach.
  • Many large employers have relevant policies to assist employees who are victims of family and domestic violence, e.g. employee assistance programs. Often these policies are broader than simply dealing with family and domestic violence; they provide assistance to employees faced with various hardships.
  • Smaller employers often do not have written policies but they typically adopt a reasonable and compassionate approach when their employees suffer genuine hardships.
  • The National Employment Standards (NES) provide for paid annual leave, paid personal/carer’s leave, paid compassionate leave, paid long service leave, paid public holiday leave, as well as various forms of unpaid leave for employees. The ACTU’s proposed 10 days per annum family and domestic violence leave entitlement would be a new category of paid leave in addition to the existing leave entitlements.
  • These days the main leave entitlements are dealt with in the NES, not awards. To date, Parliament has not supported paid family and domestic violence leave entitlements.
  • The NES provide employees who are victims of family or domestic violence with the right to request flexible work arrangements.
  • Work, health and safety legislation requires that employers provide safe workplaces and ensure the health and safety of workers.
  • Paid family and domestic violence leave exists in very few countries. Numerous countries with very generous employment entitlements do not have this leave entitlement.

The categories of family and domestic relationships which would fall within the ACTU’s claim are broad.

The leave would be able to be taken for a wide range of purposes, namely:

  • attending legal proceedings, counselling and appointments with a medical or legal practitioner;
  • relocation or making other safety arrangements; or
  • other activities associated with the experience of domestic violence.

On exhaustion of the 10 days per year paid entitlement, employees would be entitled to 2 days of unpaid leave on each occasion.

The ACTU has filed its submissions and evidence in the case.

Ai Group must file its submissions and evidence in opposition to the unions’ claims by 15 September 2016.

The matter has been listed for hearing before a Full Bench of the FWC over 15 hearing days between 14 November and 2 December 2016.

Any members wishing to discuss this case or any related issues can contact Ai Group’s Head of National Workplace Relations Policy, Stephen Smith.

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Ai Group's Head of National Workplace Relations Policy, Stephen Smith is responsible for workplace relations policy development and advocacy. He regularly represents industry’s views to governments and opposition parties, and in numerous inquiries and major cases. He is Special Counsel for, and Chairman of the Board of, Ai Group Workplace Lawyers, a national law firm operated by Ai Group.

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