December 2018

Domestic violence: a changing landscape for workplaces

Domestic violence is a big issue for the Australian community, and an issue confronting all Australian workplaces. 

One in four women have experienced domestic violence in Australia.  Shockingly, one woman is murdered each week in Australia.  Children and extended family members are also the victims of the violence.  Men can also experience domestic violence, with a higher prevalence in same sex relationships.  Domestic violence costs the Australian economy over $12 billion per year.

It is a workplace issue

Studies show that over 60% of women who experienced violence are employed.  Women who experience domestic violence are more likely to: have a disrupted work history, lower personal incomes, change jobs frequently and to be in casual or part-time work. 

Importantly, employment is also a pathway out of violent relationships as it creates independence and the opportunity to leave the relationship.

Attitudes are changing

Employers and employees are becoming more aware of domestic violence.  Many employers support initiatives to eradicate domestic violence as part of corporate social responsibility programs.

What happens when an employee has been the perpetrator of domestic violence?  This issue was recently considered by the Industrial Relations Commission of NSW in William James Sandilands v Industrial Relations Secretary on behalf of Legal Aid NSW [2018] NSWIRComm 1051.

This case concerned a senior lawyer, with lengthy service in Legal Aid, who had been convicted of assaulting his wife in front of their daughter.  The employee was found criminally liable for the assault and Legal Aid terminated his employment.  

Was it unfair to dismiss in these circumstances?  In some cases, dismissal for private matters may be considered unfair. 

The Commission considered that Legal Aid, as an organisation, has a commitment to addressing domestic violence and promoting awareness and prevention of domestic violence.  The actions of this senior employee contradicted an express statutory duty he had to “uphold the law”.  The acts also contradicted requirements of him to “model highest standards of ethical behaviour”.  The Commission found that the dismissal was not unfair.

It is certainly not the case that every instance of an employee being the perpetrator of domestic violence could justify dismissal.  What this decision does show is that domestic violence is, and can be, a workplace issue, and sometimes enough to dismiss an employee.

Domestic violence leave is now a national standard

There have been two significant developments:

  • from 1 August 2018, all modern awards included an entitlement to 5 days unpaid family and domestic violence leave; and

  • from 6 December 2018, the Australian Parliament added 5 days unpaid family and domestic violence leave to the National Employment Standards.

The entitlement extends to all employees (whether permanent or casual).

How is family and domestic violence defined?

Modern awards, and now the NES, define family and domestic violence as:

violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

The definition of a family member is not limited to a spouse or the de facto partner, but extends to a child, parent, grandparent, grandchild and sibling of either the employee or their spouse or de facto partner.  A family member also means a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

It is significant to observe that family and domestic violence is not confined to physical abuse.  It is much broader capturing other abusive behaviour that seeks to coerce or control and causes fear.

What is the five days leave for?

The entitlement can be accessed if it is necessary to deal with the impact of the domestic violence and it is impractical for the employee to do so outside their ordinary hours of work.  

The recent amendments to the Fair Work Act 2009 make clear that employers can provide more than unpaid leave.  Australian employers are increasingly providing access to paid leave entitlements – with some employers providing up to 20 days paid leave per year for domestic violence.

How the leave can be taken

The leave is available in full at the start of each 12-month period of the employee’s employment.  The leave does not accumulate from year to year

The leave can be taken in a single continuous period of 5 days, separate periods of one or more days each or any separate period of less than one day by agreement.

Other measures

Providing unpaid leave, as now required under the NES and modern awards, is just part of a mature approach to responding to domestic violence.

Managers should be properly trained about how to respond to a disclosure of domestic violence.  A study in 2011 found that only 10% of employees who had disclosed domestic violence found the response from their manager helpful.  Under the new laws there are important obligations of confidentiality.

Other steps and measures an employer could consider include:

  • robust policies around domestic violence and encouraging reporting of domestic violence where the employee feels comfortable doing so;

  • access to an EAP program for domestic violence related concerns;

  • referral procedures to providers like counsellors, psychologists, community centres and financial advisors, when appropriate;

  • education about domestic violence for the workplace;

  • zero tolerance for sexual harassment and the promotion of gender equality in the workplace.

Conclusion

This area of the law will continue to develop.  The Commission has committed to revisiting the unpaid leave entitlement in 2021 and it may become a paid entitlement.

Employers will need to develop sophisticated practices to combat the effects of domestic violence.


Authors: Andrew Yahl and James Mattson