It has been calculated that 110,000 incidents last year would have qualified under the domestic violence document heads covered under the Domestic Violence – Victims Protection Act 2018. This is probably a conservative estimate due to under-reporting. The explanatory note to the Domestic Violence – Victims Protection Bill said the aim was to support victims to stay in paid employment, provide protection from discrimination in the workplace, and enable victims to maintain domestic and economic stability to assist them to find a pathway out of violence. What will be the implications for the workplace?
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:
- confer on qualifying domestic violence victims an absolute right under the Holidays Act 2003 to up to 10 days a year domestic violence leave after 6 months qualifying employment. The leave may not necessarily relate to recent domestic violence. AS worded the domestic violence could conceivably to historic. The criterion is that the person is still suffering the effects.If this leave is requested, the employer must grant it. This is in addition to statutory sick leave entitlements. The leave will be paid in the same way as statutory sick leave entitlements. It will be in addition to statutory sick leave entitlements or contractual sick leave entitlements if higher.
- confer on victims a statutory right under the Employment Relations Act 2000 to request flexible working to vary their working arrangements, either permanently or for a period of time.
- add a new limb to discrimination personal grievances and prohibited grounds under the Human Rights Act 1993
- add a second limb to the definition of a workplace hazard to include a situation in which a person’s behaviour stems from being a victim of domestic violence or from being the person who inflicted the violence.
- impose an obligation on employers to have a workplace policy on dealing with situations where a person’s behaviour in the workplace stems from being a victim of domestic violence or because the person is a perpetrator of it, and the behaviour is an actual or potential source of harm to a person within a workplace or outside a workplace.
- Health and safety representatives must have training in supporting victims of domestic violence.
There are no exemptions for small employers.
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 a 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, but who face similar challenges in relation to some of these matters but do not have these rights.
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 predominantly 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 Act 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.
Published: 19 June 2018