The Australian Greens support the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill). The Greens have long advocated for paid family and domestic violence (FDV) leave to help victim-survivors, who are predominantly women, to escape abusive relationships, protect themselves and their children, and rebuild their lives.
Financial security and stable employment are critical to a victim-survivor’s capacity to escape, to stay safe, and to recover. Many submitters to this inquiry outlined the practicalities of leaving - finding a new home, moving, meetings with police and lawyers, court appearances, dealing with Centrelink, attending medical appointments, talking to your children’s school about new arrangements, installing security devices, and closing joint accounts. These things take time and often cannot be done without a secure income.
No one should have to choose between their safety and their job. During the hearing for this inquiry, Professor Kate Fitz-Gibbon quoted from a participant in Monash’s 2021 research into paid domestic violence leave:
If I didn't have access to paid leave I would have lost my job. I would have lost everything. I don't know if I would have survived. It was my lifeline.
Further, as many submitters pointed out, where a victim-survivor is forced to use unpaid leave to do the things needed to prepare for escape, the change in income can be a flag to an abuser. That puts a victim-survivor at further risk. Payslips showing a lower income over a fortnight can also jeopardise applications for housing, eligibility for government support programs, or change the basis of an assessment for Centrelink support.
While the exact needs of a victim-survivor will differ between situations, those needs will not be determined by the nature of their work or how long they have been with an employer. We therefore strongly support ensuring that all employees—whether full time, part time, or casual—can access the full 10 days of paid FDV leave when they need it, rather than the entitlement accruing over time. As Ms Lang of the Australian Services Union told the Committee:
[We] have never seen a circumstance where a perpetrator of violence has pro-rataed the amount of violence they inflict on their partner based on how many hours she works.
Any employee dealing with family and domestic violence needs to be able to access paid leave when the need or opportunity to escape arises. Experience in jurisdictions and businesses that have introduced paid FDV leave indicate that the uptake of leave is minimal but knowing that it is available makes a huge difference to employees weighing the decision to escape violence. Access to this leave could save their life.
Brief comments on key issues raised in submissions
Review of the Bill
The Australian Greens support Recommendation 1 of the Committee report, calling for an 18-month review of the operation of the Bill. A review of the operation of the Bill will be important to understand how well FDV leave provisions are working, what barriers continue to exist for victim-survivors accessing FDV leave, and what further support could be provided to employers.
Impacts on employers
The Australian Greens recognise the cost implications of introducing a paid leave scheme. However, we agree with the conclusion of the Committee report, based on extensive evidence to the Fair Work Commission and the experience of governments and businesses that have implemented paid FDV schemes, that the overall financial impact will be minimal, and largely offset by related savings.
The Australian Greens acknowledge that providing paid family and domestic leave will have greater impacts on individual small businesses. However, these businesses are already experiencing disproportionate impacts where victim-survivor employees are taking unpaid leave or sporadic absences or working at lower productivity.
Ms Ludo McFerran told the Committee that, in her experience, the impact on small business has been persistently raised as a barrier to introducing a paid leave scheme. However, she also noted:
But I have to say that over the years some of the best stories I've heard about business responses to this crisis were from small businesses. They're flexible, they know everybody, they're more like a family organisation…. There were some really great stories. There were also some terrible stories, so we need to do something. But I think I'd rather we all concentrate on the fantastic stuff, the potential of small business to be real leaders in this in terms of their flexibility and innovation and their care for their own staff, rather than focusing on the problem areas.
We strongly support resources being developed to assist businesses, particularly small businesses, to implement the paid family and domestic leave provisions. We also support impacts on business being considered as part of the proposed 18 month review of the Bill.
The paid FDV leave scheme established by the Bill will not take effect for small businesses until 1 August 2023. We acknowledge that some time is needed to enable small businesses to prepare for the change, update payroll systems, and undertake targeted training. However, it is important to note that the significant number of women employed by small businesses will not be able to access paid leave entitlements during that period, while victim-survivors employed in larger businesses or the public sector will.
Recommendation
That any financial support package provided by the government be contingent on recipient businesses offering paid FDV leave to employees at the earliest possible opportunity.
Definition of family and domestic violence
The Australian Greens support the broad definition of family and domestic violence to include violence and abuse inflicted by close relatives, current or former intimate partners or other members of the employee’s household. However, we acknowledge the numerous submissions calling for consistent definitions of family and domestic violence and support ongoing efforts to harmonise definitions across jurisdictions and legislation.
The Australian Greens also acknowledge that the definition does not extend to sexual violence where the perpetrator is not a relative, housemate, or intimate partner. ANROWS data on the prevalence of sexual violence against women shows that 51 per cent of women in their twenties and 34 per cent of women in their forties have experienced sexual violence, and that this has long-term impacts.
Employees who have experienced sexual violence may also need time off work to meet with police or lawyers, attend court, medical appointments and counselling, but will not be eligible to access the new paid leave entitlements if the perpetrator was not a close relative or partner.
Recommendation
That the 18 month review of the Bill consider the definition of family and domestic violence in the Fair Work Act 2009 in the context of harmonisation initiatives, and consider whether to expand leave entitlements to family, domestic and sexual violence.
Evidentiary requirements
The Bill retains provisions in the Fair Work Act 2009 that allow (but do not require) employers to request that employees provide evidence that they are experiencing family and domestic violence, and need to do things relating to that violence that it is not safe or appropriate to do outside of work hours. Any evidence that is provided must be kept confidential.
The Women’s Legal Centre ACT submitted that this evidentiary provision ‘leaves scope for employers to make it extremely difficult for people to provide the required evidence’ and recommended that employers ‘err on the side of support when considering requests’.
Research conducted by Professor Fitz-Gibbon and others confirmed that evidentiary requirements had deterred some people from using leave entitlements, due to the shame of providing sensitive information, administrative difficulties in getting access to documents, and concerns regarding how that information would be recorded. These concerns were echoed by the National Rural Women’s Coalition.
Barriers to accessing paid FDV leave should be minimised or removed altogether. Given the stigma still attached to disclosure, a supportive workplace culture should start from the position of believing an employee who has taken the brave step of asking for family and domestic leave. Mr Alex Lyon described the approach taken by the Western Australian Government:
In terms of evidentiary requirements, whilst we do ask for evidence to satisfy a reasonable person, out of session we've asked employers to provide greater leniency around evidentiary requirements and to deal with matters directly and quickly.
Recommendation
That resources developed by the Fair Work Ombudsman to support implementation of the Bill provide clear guidance to employers regarding evidentiary requirements, including:
Requests for documentation should be kept to a minimum.
Employers should be flexible about what documentation is sufficient.
Approval of leave should not be deferred while waiting for evidence to be provided.
Employers must have clear processes to prevent disclosure of any documentation requested. Ideally, evidence could be sighted by the employer and returned to the employee, rather than kept on file. The employee file can record that appropriate documentation was provided without any further detail.
Eligible activities
The Australian Greens support the proposed amendments to Note 1 to s.106B(1) to provide more examples of activities that would justify taking FDV leave. Several submissions recommended further amendments to better illustrate the scope of eligible activities and to confirm that the list is not exhaustive. We agree that these amendments would provide clearer guidance to employers.
Several submissions also questioned whether perpetrators should be able to access paid FDV leave to attend behaviour change programs. The Business Council of Australia has published a Best Practice Guide for Employers which encourages employers to make leave available for ‘perpetrators who can demonstrate they are seeking help to change abusive behaviour and/or improve the safety of their family, are paying child support where required and have not breached a protection order’.
Relationships Australia submitted that the Bill should be explicitly amended to allow access by perpetrators in appropriate circumstances because ‘[i]t is in the public interest for governments to identify and facilitate opportunities to remove barriers to help-seeking by people who use violence in their relationships’.
While FDV leave is clearly targeted at protecting victim-survivors, the Greens recognise that prevention and intervention initiatives, including behaviour change programs, are important to ending gendered violence. Participation in these programs must be encouraged and facilitated. Clarifying that eligible activities outlined in the note to s.106B are not exhaustive would give employers discretion to accept a request for leave to attend behaviour change programs.
The Law Council of Australia also submitted that the leave may be required over a long period of time, but still relate to the same abuse. For example, even after an employee has left an abusive relationship and is no longer directly experiencing violence, leave may be needed to attend court hearings, counselling or related medical appointments.
Recommendation
That s106B be amended to:
expand s.106B(1)(a) to include apply to an employee who ‘has experienced, or is experiencing, family and domestic violence’;
amend s.106B(1)(c) to read ‘it is impractical or unsafe for the employee to do that thing outside the employee’s ordinary hours of work’ (emphasis added);
expand the examples provided in Note 1 to s.106B(1) to include arranging for the care of children, securing alternative housing, and addressing long term physical and mental health issues relating to the family and domestic violence; and
clarify that the examples provided in Note 1 are not exhaustive.
Provision of additional unpaid leave
As outlined in the Committee report, it often takes seven or eight attempts for a victim-survivor to leave an abusive relationship and an average of 141 hours and $18,000. Family and criminal law proceedings can be lengthy, and recovery from trauma is a long-term project.
This confirms the importance of paid FDV leave. It also suggests that 10 days will not always be enough. ANROWS notes that best practice, nationally and internationally, is to provide unlimited leave or, at least, 14 days. A number of submissions called for unpaid leave to be available to employees who have exhausted their paid FDV leave.
The approach adopted by the Western Australian Government is:
An employee who uses all of their paid FDV leave entitlement can access up to two days unpaid FDV leave on each further occasion it is needed. There is no requirement for employees to have exhausted other forms of leave in order to access unpaid FDV leave.
Recommendation
That the Bill be amended to provide an entitlement for unpaid FDV leave where employees have exhausted their annual 10 days of paid leave. This could be modelled on the Western Australian Government provisions, or explicitly provide for at least 4 additional days of unpaid leave. Employers may also, at their discretion, provide additional paid FDV leave, in advance or by agreement.
Non-discrimination
The National Rural Women’s Coalition were concerned by ‘unintentional bias that will be experienced by women when applying for a job’ where employers are concerned that they are more likely to claim FDV leave. The Working Women’s Centre and Circle Green Community Legal also observed that employees may be at high risk of being fired if they disclose family and domestic violence or seek FDV leave, and do not have explicit protection against unfair dismissal in those circumstances.
Recommendation
That the Fair Work Act 2009 (Cth) be amended to include ‘experiencing family and domestic violence’ and requesting FDV leave as protected characteristics under s.35(1).
That the 18 month review examine any evidence of gender discrimination resulting from the Bill and consider whether family and domestic violence should be a protected attribute under the Sex Discrimination Act 1984 (Cth).
Training for employers
A number of employers told the Committee that they were worried by the additional burden placed on businesses to manage complex disclosures and suggested that a government-administered scheme would provide more expert, arms-length, confidential support to victim-survivors. However, the Women’s Legal Centre ACT, an organisation that has a lot of experience in developing and delivering training to employers, submitted that:
[A] good response to domestic and family violence relies on relationship, trust and skill as a manager/employer, not on expertise about domestic and family violence.
Statistically, a majority of workplaces will have employees who have experienced, or are experiencing, family and domestic violence. Professor Kate Fitz-Gibbon told the Committee that implementation of the leave provides an invaluable opportunity to strengthen workplace support for victim-survivors across the board and de-stigmatise disclosure:
[I]t's going to be essential to work with businesses across Australia and at every level to emphasise the importance of embedding this, using this as an opportunity to say: 'This leave is here because we care about you and because we understand, by virtue of the prevalence of domestic and family violence in Australia, that we have numerous employees that are experiencing this. That's okay. We see that and we want to support you…'
Equip people with what they can say when a colleague discloses to them. Make the processes very clear. Listen to employees. Reflect. Monitor. If the leave is not being accessed, that's a problem for your business, because you definitely have victims-survivors in your company. So I think it's important for us to put a cultural piece around this but also to support businesses in what that looks like and really ready resources to use.
The Department of Employment and Workplace Relations and the Department of Social Services advised the Committee that they are developing an implementation plan and will support employers with training and resources. These resources should help employers to adopt practices around managing disclosures, making appropriate referrals, supporting workers, protecting privacy, and avoiding discrimination.
The introduction of a positive duty on employers, as recommended in the Respect@Work report, will also require employers take steps to foster a culture where employees feel safe to disclose their experiences and confident that measures will be put in place to ensure their safety and the safety of their colleagues.
Other measures
We welcome the government’s recognition of the need for an ‘urgent, whole-of-community response to family and domestic violence’.
In discussing the Western Australian Government’s experience in implementing a paid FDV leave scheme for the public service, Mr Alex Lyon emphasised that providing paid FDV leave is not a whole solution. Paid FDV leave needs to be complemented by strengthening frontline services, increasing education and awareness around domestic and family violence, providing flexible working arrangements, and improving data collection.
Relationships Australia, Full Stop Australia and the Women’s Legal Centre ACT told the Committee about existing strains on their services. This is common across many frontline services working to end gendered violence. Ms Rosenman from the Women’s Legal Centre ACT submitted that failure to fund expert services would undermine the objectives of the Bill:
One of the things that I worry about is that the inadequacy of the front-line services actually risks the support of employers for this bill and for these entitlements. As I have said, one of the main [things] that assists the support of employers is the fact that there is a specialist place they can refer people who are experiencing domestic and family violence to. If they can't answer all the phone calls, managers and employers are going to get more anxious about having the conversation because they're left with an explanation that they can't fill.
Recommendation
That the government ensure that the Bill is part of a broad suite of reforms to implement the new National Plan to End Violence Against Women and Children. At a minimum, this should include:
Increasing funding to frontline services to $1 billion annually to meet expected demand.
Measures to address the housing crisis that makes it difficult for women fleeing abusive relationships to find new accommodation.
Increasing income support payments so women without stable employment (and access to paid FDV leave) can still have the financial security to leave abusive relationships.
Reviewing the Escaping Violence Payments and streamlining administrative processes for accessing Centrelink crisis payments.
Requiring employers to accept reasonable requests for flexible working arrangements.
Senator Larissa Waters Senator Mehreen Faruqi
Participating Member Member
Greens Senator for Queensland Greens Senator for New South Wales