Recent ABS figures show that two thirds of the 400,000 plus people who experience domestic violence each year are in paid employment. Currently, 1.5 million employees have access to paid domestic violence leave through clauses in their enterprise bargaining agreements or state awards.
A growing number of large companies, including the National Australia Bank, Aldi, Dulux, McDonalds and IKEA, have introduced such clauses.
In accordance with s 156 of the Fair Work Act 2009 (Cth) the Fair Work Commission must review all modern awards every 4 years, which has already started accepting submissions, including those from the ACTU. The reviews may result in the Commission making new modern awards, or varying or revoking current modern awards.
As part of this review the Australian Council of Trade Unions (ACTU) is proposing variations to all awards (including National Employment Standards) in respect of the “common issue” of family and domestic violence.
The ACTU, Unions and Trades and Labour Councils have worked in conjunction with the Family and Domestic Violence Clearing House to develop a model Paid Domestic Violence Leave entitlement.
Paid Domestic Violence Leave is designed to assist victims of domestic violence to remain in paid employment, support them through the process of escaping violence and to promote safe and secure workplaces for them and their work colleagues.
The ACTU claim is to provide 10 days paid leave for permanent employees and 10 days unpaid leave for casual employees. The leave is based on an employees need, for example, to attend court appearances and related appointments, seek legal advice, and make re-location arrangements.
The proposal affords workers with a right (in connection with their disclosure of domestic violence) to request flexible working arrangements or other changes to arrangements for when, how or where work is performed, such as variations to working hours, start and finishing times, or location of work. The model will require employers to reasonably accommodate an employees’ request, and provide employees with a right to appeal an employer’s unreasonable refusal in their workplace agreements.
Employers will be required to establish proper processes and procedures to support employees experiencing domestic violence to access these entitlements and to clarify the roles and responsibilities of the employer and work colleagues.
To this end, the claim also includes incidental provisions to:
- Address evidentiary and notice requirements for an application for family and domestic violence leave;
- Appoint a workplace contact for employees to whom applications for the leave and requests for changes to working arrangements would be made (accessing such measures would involve disclosure of domestic violence);
- Clarify the role and responsibilities of the contact person(s) to whom an employee has disclosed domestic violence;
- Establish processes and procedures to ensure confidentiality for employees disclosing domestic violence;
- Address any mandatory reporting and Privacy Act 1988 (Cth) requirements if relevant;
- Ensure adequate training and support is provided for a contact person(s) who is likely to have an employee disclose circumstances related to domestic violence to them; and
- Refer to the protections afforded by the Fair Work Act to persons who exercise or propose to exercise a workplace right.
The FWC will be continuing to hear and receive submissions on matters regarding amendments to awards and common issues. In the first half of 2015 the FWC is timetabled to hear issues relating to award flexibility/facilitative provisions for public holidays, before the proceedings are referred to a Full Bench.