Australian employees are already protected in their employment if they are experiencing domestic violence. This is because the Fair Work Act 2010 makes it unlawful to terminate or otherwise adversely change an employee’s working conditions due to the fact that they are experiencing domestic violence.
Prior to such protections some employers preferred to avoid the dangers of domestic violence becoming violence in the workplace and regretfully informed their employees that the risk of harm to other employees, or the reputation of the business was too great to continue to allow a victim of domestic violence to be at work.
This reform to protect the employment of victims was necessary, and reflects Australia’s general commitment to ending the shame and silence that surrounds domestic violence so that victims are publicly supported and better equipped to seek safety from a private terror.
Now a further reform is sought – to provide additional paid leave to employees experiencing domestic violence so that they can take necessary actions such as going to court to apply for restraining orders, seek alternative accommodation, move children to another school and/or seek counselling and other treatment.
In 2014 the Australian Council of Trade Unions (ACTU) proposed that the Fair Work Commission (FWC) should insert a clause into all modern awards to provide for 10 days of paid domestic violence leave. A separate proposal by the ACTU to allow employees to request a change in working arrangements in connection with their disclosure of domestic violence was also proposed.
Extensive submissions in relation to the domestic violence leave proposal were received and considered by the Commission from a wide range of organisations including a multitude of unions as well as Industry Groups.
Unsurprisingly, submissions made by unions avidly supported the proposal while industry groups all said it would be too expensive and complicated to administer.
After more than two years of hearings, the ACTU’s application has fallen into a spiral of delay and controversy. The President of the Fair Work Commission is now caught up in the matter and trying to determine a technical legal issue that could materially change whether the proposal succeeds or not.
At the December 9 Council of Australian Governments (COAG) meeting, several Labor state premiers pushed for the provision of mandated family violence leave in the National Employment Standards, which set out the minimum entitlements for Australian workers covered by the Fair Work Act.
A COAG decision is likely to be made in the first quarter of 2017, so it’s apparent that employers will need to prepare for potential legislative changes.