The Australian Law Reform Commission (ALRC) recently tabled the Family Violence and Commonwealth Laws—Improving Legal Frameworks Report in Parliament. A total of 102 recommendations have been made covering a number of areas of Commonwealth law which intersect with family violence.
The purpose of the report is to consider the treatment of family and domestic violence laws, with a view to considering improvements which could be made in a number of areas to assist women experiencing family violence.
The ALRC has been examining the impact of Commonwealth laws including child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions on persons experiencing family or domestic violence.
Violence against women is a breach of women’s human rights. The Committee on the Elimination Of All Forms of Discrimination Against Women has acknowledged that violence constitutes a breach of womens’ human rights and fundamental freedoms under general international law and human rights conventions recognising the right to just and favourable conditions of work.
The Committee explicitly recognised that violence against women can inhibit the enjoyment by women of their human rights in the workplace environment.
Being able to engage in employment gives women financial security for themselves and their children and has a practical impact upon their ability to extricate themselves from violent relationships. Women have the right to just and favourable conditions of work.
The legal question has arisen as to whether family violence-related amendments to the Fair Work Act 2009 (Cth) are necessary to assist women in the workplace context to protect women experiencing family violence.
One of the key recommendations made in the Report is whether s65 of the Fair Work Act should be amended to provide that an employee who is experiencing family violence, or a person providing care or support to another person experiencing family violence, may request the Employer for a change in working arrangements in order to assist the employee to deal with the circumstances which arise from family violence.
An entitlement to flexible workplace arrangements and additional family violence leave would be achieved by incorporation into the right to request provisions of the National Employment Standards (NES).
Current leave entitlements were perceived as inadequate in that they don’t enable women experiencing family violence the opportunity to request leave in emergency situations, or for the purpose of attending court, medical, legal and other appointments necessary to deal with a situation of family or domestic violence.
Under the Fair Work Act 2009 (Cth) employees must also fulfil the eligibility requirements to access some of the protections and entitlements under the Act, namely to have either provided 12 months service or satisfy the definition of a long term casual employee with a reasonable expectation of continuing employment.
The Commission explored evidence and information about the impact that family violence has on women in the employment context, including surveys of experiencing family violence. The surveys revealed that almost half of respondents reported that family violence resulted in workplace absenteeism, whilst 19% reported that family violence continued in the workplace. Respondents reported that family violence in the workplace took the form of abusive phone calls, emails and attendances by violent persons in the workplace.
Chapter 18 of the Report focuses on the ways in which current Commonwealth OHS laws protect employees experiencing family violence, and how to address gaps in the law. The Report considers family violence as a potential work health and safety issue, and considers the need for increased awareness and understanding, education and training to ensure employees have the greatest protection possible.
The general protection provisions of the Fair Work Act 2009 (Cth) were found to result in differential treatment of women exposed to family and domestic violence, in that they afford only limited protection to victims of family and domestic violence compared to other workers. However, the ALRC considered that the Australian Human Rights Commission (AHRC) investigate whether family violence should be included as a separate ground of discrimination under anti-discrimination laws prior to making any amendments to the Fair Work Act 2009 (Cth) to provide a minimum statutory entitlement under the Act. The AHRC has already concluded that workers affected by family and/or domestic violence, and thus subject to both direct and indirect discrimination in the workplace, are not adequately protected by adverse action and unlawful termination of employment provision under the Fair Work Act. The AHRC proposed that the definition of domestic violence not be restricted to current and former intimate partners and include physical, sexual, emotional and psychological abuse.
At present a person experiencing family or domestic violence is limited to pursuing a discrimination claim on the grounds of either disability, sex or family responsibilities. However to prevail on a claim on the grounds either of adverse action or unlawful termination of employment under the Fair Work Act, the person must establish a causal connection between the adverse action and the discriminatory act. In the absence of an express protected covering family family violence in anti-discrimination laws, case studies available to the Commission demonstrate that this task has proven difficult for complainants.
With almost two thirds of women affected by domestic violence in Australia in paid employment it is imperative that the effects of domestic violence in the employment sphere be acknowledged in the form of legal mechanisms to assist workers experiencing family violence and to recognise the right to equality in employment as a human right.