Monday, 20 August 2018
Author: S-J Davies
The Domestic Violence - Victims Protection Act 2018 comes into force on 1 April 2019. It provides a package of workplace reforms to enhance legal protections for victims of family violence. In Australia, 1.6 million workers are already covered by similar provisions. The most contentious is a right under the Holidays Act 2003 to request up to 10 days domestic violence leave a year, in addition to statutory sick leave entitlements.
The workplace reforms will:
There are no exemptions for small employers, namely those with 19 employees or less.
Will these measures have a significant impact for employers and employees?
Employers and others will acquire personal information about the domestic circumstances and health of victims. Under the Privacy Act 1993 the persons holding the information must not disclose it except tightly controlled instances.
Extra paid leave
The greatest impact is likely to be the right to up to 10 days paid domestic violence leave a year. The paid leave could take the form of paid short intermittent absences or longer periods of up to the full 10 days. The leave appears to be on top of ACC paid leave, which some victims would also be entitled to, as well as their paid sick leave entitlements. It puts some of the cost of compensating victims for loss of earnings on employers, away from the taxpayer. The leave is not confined to recovery from injury. It can also be used for counselling, moving house, settling children into a new school, dealing with the Family Court, or safety planning. This may be challenging for other employees, who are not victims of domestic violence, who face similar challenges in relation to some of these matters.
Changing hours of work
The right for anyone to request flexible working arrangements under Part 6AA Employment Relations Act 2000 has been law since 2008. Empirical evidence suggests the uptake on this right is relatively low, with most employers faced with requests of this type taking a pragmatic approach. It is hard to see how this new right is going to change this.
The provisions are implicitly gender-biased because in most of the serious cases, it is women who are the victims. The reforms add another layer of protection for people from being subjected to disadvantage in opportunities for jobs and promotions and being ostracized by colleagues and/or their jobs being at risk because they are a victim of domestic violence. Discrimination cases are now the subject of forum shopping and there has been an increase in discrimination cases being taken in the Human Rights Tribunal where in some cases, substantial five figure awards have been made.
Health and Safety
The Bill adds another layer of compliance on enterprises. Employers will now be required to demonstrate they have identified domestic violence as a workplace hazard and have systems in place to create a workplace environment to mitigate its impacts both inside the workplace and in its vicinity. Health and Safety representatives will now need to be trained to recognise family violence as a workplace hazard.
The extra paid leave entitlement and added protection from discrimination adds a layer of protection for victims but complication for employers in managing intermittent and/or long term incapacity absences and new health and safety compliance requirements.
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