Pub­li­ca­tions

An employ­ment and fam­i­ly law guide to fam­i­ly and domes­tic vio­lence in the workplace

Intro­duc­tion

In 2018 Fam­i­ly and Domes­tic Vio­lence Leave was intro­duced to the Fair Work Act 2009 (Cth) (Fair Work Act) and as a mod­el term in mod­ern awards. This ini­tia­tive came after a strong cam­paign from trade unions and com­mu­ni­ty groups. How­ev­er, fam­i­ly and domes­tic vio­lence is a top­ic that many employ­ers do not feel com­fort­able in address­ing. This arti­cle pro­vides insight from both a fam­i­ly law and employ­ment law per­spec­tive to give employ­ers a nec­es­sary and prac­ti­cal under­stand­ing of fam­i­ly and domes­tic vio­lence issues in the workplace.

Defin­ing fam­i­ly and domes­tic violence

Under the Nation­al Employ­ment Stan­dards of the Fair Work Act an employ­ee is enti­tled to five days of unpaid domes­tic vio­lence leave each year. Under the Fair Work Act (at sec­tion 106B), fam­i­ly and domes­tic vio­lence is defined as follows:

  1. Fam­i­ly and domes­tic vio­lence is vio­lent, threat­en­ing or oth­er abu­sive behav­iour by a close rel­a­tive of an employ­ee that:
    1. seeks to coerce or con­trol the employ­ee; and
    2. caus­es the employ­ee harm or to be fearful
  2. A close rel­a­tive of the employ­ee is a per­son who:
    1. is a mem­ber of the employ­ee’s imme­di­ate fam­i­ly; or
    2. is relat­ed to the employ­ee accord­ing to Abo­rig­i­nal or Tor­res Strait Islander kin­ship rules.

This is a broad sec­tion that aims to be inclu­sive in its con­struc­tion, how­ev­er, it dif­fers slight­ly from the def­i­n­i­tion of fam­i­ly vio­lence under cor­re­spond­ing leg­is­la­tion such as the Fam­i­ly Law Act 1975 (Cth) (Fam­i­ly Law Act) which will be dis­cussed in this article. 

The def­i­n­i­tion of fam­i­ly and domes­tic vio­lence in the Fair Work Act is con­struct­ed to con­fer an enti­tle­ment to employ­ees and not to assess the expe­ri­ence of the employ­ee. For that rea­son, the focus of this part is on the quan­tum of the enti­tle­ment, and the oblig­a­tions of each par­ty as opposed to the nature of the fam­i­ly vio­lence that is experienced. 

In con­trast, the Fam­i­ly Law Act not only defines fam­i­ly vio­lence, but goes on to pro­vide exam­ples to illu­mi­nate and guide par­ties, legal prac­ti­tion­ers, and the judi­cia­ry, in sec­tion 4AB which reads:

  1. For the pur­pos­es of this Act, fam­i­ly vio­lence means vio­lent, threat­en­ing or oth­er behav­iour by a per­son that coerces or con­trols a mem­ber of the per­son­’s fam­i­ly (the fam­i­ly mem­ber ), or caus­es the fam­i­ly mem­ber to be fearful.
  2. Exam­ples of behav­iour that may con­sti­tute fam­i­ly vio­lence include (but are not lim­it­ed to):
    1. an assault; or
    2. a sex­u­al assault or oth­er sex­u­al­ly abu­sive behav­iour; or
    3. stalk­ing; or
    4. repeat­ed deroga­to­ry taunts; or
    5. inten­tion­al­ly dam­ag­ing or destroy­ing prop­er­ty; or
    6. inten­tion­al­ly caus­ing death or injury to an ani­mal; or
    7. unrea­son­ably deny­ing the fam­i­ly mem­ber the finan­cial auton­o­my that he or she would oth­er­wise have had; or
    8. unrea­son­ably with­hold­ing finan­cial sup­port need­ed to meet the rea­son­able liv­ing expens­es of the fam­i­ly mem­ber, or his or her child, at a time when the fam­i­ly mem­ber is entire­ly or pre­dom­i­nant­ly depen­dent on the per­son for finan­cial sup­port; or
    9. pre­vent­ing the fam­i­ly mem­ber from mak­ing or keep­ing con­nec­tions with his or her fam­i­ly, friends or cul­ture; or
    10. unlaw­ful­ly depriv­ing the fam­i­ly mem­ber, or any mem­ber of the fam­i­ly mem­bers fam­i­ly, of his or her liberty.
  3. For the pur­pos­es of this Act, a child is exposed to fam­i­ly vio­lence if the child sees or hears fam­i­ly vio­lence or oth­er­wise expe­ri­ences the effects of fam­i­ly violence.

The exam­ples giv­en in the Fam­i­ly Law Act are intend­ed to ensure that con­duct beyond phys­i­cal vio­lence and/​or threats of phys­i­cal vio­lence is prop­er­ly con­sid­ered as fam­i­ly vio­lence, pre­dom­i­nant­ly to ensure pro­tec­tion for chil­dren, but also to facil­i­tate pro­tec­tion of adult par­ties, dur­ing fam­i­ly law proceedings. 

It is par­tic­u­lar­ly impor­tant with­in a fam­i­ly or rela­tion­ship set­ting to recog­nise that fam­i­ly vio­lence may not involve any phys­i­cal vio­lence, but rather is a pat­tern of coer­cive and con­trol­ling behav­iour by one par­ty towards the oth­er par­ty and/​or their children. 

The Fair Work Act does not pro­vide a detailed def­i­n­i­tion of the behav­iours that con­sti­tute fam­i­ly vio­lence. In order to pro­vide effec­tive man­age­ment to employ­ees who are expe­ri­enc­ing fam­i­ly vio­lence it is impor­tant for employ­ers to have an ade­quate under­stand­ing of the types of fam­i­ly vio­lence. In par­tic­u­lar, under­stand­ing that many forms of fam­i­ly vio­lence are not phys­i­cal in nature, and that fam­i­ly vio­lence can impact employ­ees of all dif­fer­ent cul­tur­al and socioe­co­nom­ic backgrounds. 

Fam­i­ly and domes­tic vio­lence can include:

  • Phys­i­cal abuse:
    Shak­ing, push­ing, dri­ving dan­ger­ous­ly, destroy­ing prop­er­ty, restraint or throw­ing things.
  • Finan­cial abuse
    Con­trol of finances, restrict­ing access to accounts or pro­vid­ing an inad­e­quate allowance.
  • Emo­tion­al abuse
    Humil­i­a­tion, intim­i­da­tion, blame, bul­ly­ing, iso­la­tion, and threat­en­ing suicide.
  • Ver­bal abuse
    Name call­ing, crit­i­cism, swear­ing, yelling and oth­er per­son­al attacks.
  • Social abuse
    Mon­i­tor­ing phone calls and emails, crit­i­cis­ing friends and fam­i­ly, iso­la­tion from friends and family.
  • Sex­u­al abuse
    Unwant­ed touch­ing, sex­u­al assault and using sex as a pow­er dynam­ic with­in relationships.
  • Stalk­ing
    Repeat­ed phone calls and con­tact, loi­ter­ing at a place of work and mon­i­tor­ing a person.
  • Spir­i­tu­al abuse
    Pre­vent­ing or forc­ing the prac­tice of reli­gion and mis­us­ing spir­i­tu­al belief to jus­ti­fy abuse.
  • Image-based abuse
    Non-con­sen­su­al shar­ing of images of an indi­vid­ual such as revenge porn’.

The above behav­iours demon­strate the breadth of fam­i­ly and domes­tic vio­lence, which may involve a mix­ture of the above or a par­tic­u­lar type in iso­la­tion. The inci­dence and mag­ni­tude of domes­tic and fam­i­ly vio­lence is also stark. Accord­ing to the Aus­tralian Bureau of Sta­tis­tics Per­son­al Safe­ty Sur­vey 2016:

  • 17% of women and 6% of men have expe­ri­enced vio­lence by a part­ner since the age of 15.
  • 1 in 4 women and 1 in 6 men have expe­ri­enced emo­tion­al abuse by a cur­rent or for­mer part­ner since the age of 15.
  • 1 in 6 women and 1 in 15 men have expe­ri­enced sex­u­al vio­lence since the age of 15
  • almost 40% of women con­tin­ue to expe­ri­ence vio­lence from their part­ner while tem­porar­i­ly separated.
  • 1 in 6 women have expe­ri­enced stalk­ing since the age of 15.

Man­ag­ing fam­i­ly and domes­tic vio­lence at work

Evi­dence

In accor­dance with the Fair Work Act, an employ­ee is required to pro­vide evi­dence to the employ­er that would sat­is­fy a rea­son­able per­son. There is also an oblig­a­tion for employ­ers to ensure con­fi­den­tial­i­ty in rela­tion to any notice or evi­dence that is pro­vid­ed by an employ­ee. Although not spe­cif­ic in the Fair Work Act, the mod­el term for fam­i­ly and domes­tic vio­lence in mod­ern awards goes fur­ther and out­lines a doc­u­ment issued by the police ser­vice, a court or fam­i­ly vio­lence sup­port ser­vice, or a statu­to­ry dec­la­ra­tion’ as exam­ples of appro­pri­ate evi­dence. This cre­ates ambi­gu­i­ty as to what con­sti­tutes appro­pri­ate evi­dence, with lit­tle guid­ance pro­vid­ed to employ­ers and employ­ees alike. 

It is impor­tant for employ­ers to be aware that it is not always appro­pri­ate for an employ­ee to pro­vide copies of doc­u­men­ta­tion, even if that employ­ee is will­ing to do so. For exam­ple, sec­tion 121 of the Fam­i­ly Law Act pro­hibits dis­sem­i­nat­ing to a sec­tion of the pub­lic any account of pro­ceed­ings which iden­ti­fies the par­ties to the pro­ceed­ings. Pro­vi­sion of doc­u­ments from fam­i­ly law pro­ceed­ings to employ­ers may fall with­in this prohibition. 

Addi­tion­al­ly, the high­ly sen­si­tive (and often detailed) nature of doc­u­men­ta­tion in fam­i­ly law pro­ceed­ings may cause unwill­ing­ness to pro­vide said doc­u­ments to employ­ers. Employ­ers should also be aware that the nature of fam­i­ly law pro­ceed­ings is such that there may not be a doc­u­ment which can be pro­vid­ed, which pro­vides clear-cut evi­dence of fam­i­ly vio­lence, in any event. 

The same restric­tions do not apply to fam­i­ly vio­lence orders, which are known by dif­fer­ent names in dif­fer­ent states – for exam­ple, in NSW, they are called Appre­hend­ed Domes­tic Vio­lence Orders (com­mon­ly referred to as AVOs”). These orders restrict the behav­iour of the alleged per­pe­tra­tor towards the vic­tim. There is no pro­hi­bi­tion on pro­vid­ing such doc­u­ments to third par­ties, although, as with any fam­i­ly law doc­u­ments, the per­son­al nature of such doc­u­ments will require sen­si­tive han­dling by employers. 

Employ­ers should also be aware that many vic­tims of family/​domestic vio­lence do not for­mal­ly engage with the police or the fam­i­ly law sys­tem. An employ­ee may not, there­fore, be able to pro­vide offi­cial” evi­dence of fam­i­ly vio­lence. This does not, and should not be inter­pret­ed to mean, that they are not gen­uine­ly access­ing the leave enti­tle­ments under the Fair Work Act. 

Cul­ture

Work­places are impor­tant set­tings in the pre­ven­tion of fam­i­ly vio­lence as they can either facil­i­tate the needs of the employ­ee, or act as an addi­tion­al bar­ri­er. Work­places can per­pe­trate sex­ism, dis­re­spect and atti­tudes that are not under­stand­ing of fam­i­ly vio­lence. There­fore, it is impor­tant for employ­ers to address atti­tu­di­nal and cul­tur­al issues proac­tive­ly to build a sup­port­ive and under­stand­ing work­place culture. 

Strong lead­er­ship is a pri­ma­ry force in com­bat­ting these issues and it is there­fore impor­tant for man­agers to have an under­stand­ing of how fam­i­ly vio­lence can impact the work­place. Oth­er ini­tia­tives include train­ing and the pro­vi­sion of addi­tion­al, or paid, fam­i­ly vio­lence leave in addi­tion to the exist­ing mod­ern award and NES provisions.

Man­age­ment

Employ­ers should be care­ful when man­ag­ing employ­ees who are expe­ri­enc­ing fam­i­ly vio­lence. This includes being sen­si­tive to the employ­ee’s needs such as altered work hours and absences, which should not be con­flat­ed with mis­con­duct. In the mat­ter Ley­la Moghi­mi v Eliana Con­struc­tion and Devel­op­ing Group Pty Ltd [2015] 4864 the Fair Work Com­mis­sion (FWC) held that the employ­ee’s ter­mi­na­tion on the grounds of mis­con­duct was harsh, unjust and unrea­son­able. This was fol­low­ing a num­ber of absences, and an inter­ven­tion order being ordered against her hus­band who was also a col­league. None of these mat­ters amount­ed to an inabil­i­ty for the appli­cant to per­form her role and the ter­mi­na­tion was based on unfound­ed assump­tions about the appli­can­t’s fam­i­ly vio­lence sit­u­a­tion. The FWC ordered that the employ­er pay the appli­cant the max­i­mum com­pen­sa­tion allowance for her claim.

Fol­low­ing on from the above case, employ­ers would be wise to be aware of the lengthy time peri­ods over which pro­ceed­ings in both the fam­i­ly and crim­i­nal courts can extend, where issues of fam­i­ly vio­lence are involved. It is not unusu­al for pro­ceed­ings to extend for sev­er­al years in the fam­i­ly courts, and for over a year in the crim­i­nal courts. 

Best Prac­tice

Although the Fair Work Act, and any applic­a­ble mod­ern award, out­line respon­si­bil­i­ties for employ­ers, there are also some impor­tant best prac­tice steps. The below steps are not exhaus­tive but pro­vide a guide to help employ­ers effec­tive­ly man­age fam­i­ly and domes­tic vio­lence issues in the workplace.

  1. Pro­vide train­ing and devel­op­ment to both employ­ees and managers.
  2. Be sen­si­tive to the employ­ee’s cir­cum­stances, and only request evi­dence when required.
  3. Famil­iarise employ­ees and man­agers with the dif­fer­ent forms of fam­i­ly and domes­tic violence.
  4. Famil­iarise employ­ees and man­agers with appro­pri­ate domes­tic vio­lence sup­port services;
  5. Pro­vide sup­port resources to employ­ees who are impact­ed by fam­i­ly and domes­tic vio­lence, such as:
    1. access to an employ­ee assis­tance pro­gram for counselling;
    2. assis­tance in access­ing or pro­vid­ing refer­rals to local domes­tic vio­lence sup­port services;
    3. prac­ti­cal assis­tance such as chang­ing the bank account to which the employ­ee’s pay is deposit­ed; and
    4. assis­tance in pre­vent­ing the per­pe­tra­tor harass­ing the employ­ee at work.

If your organ­i­sa­tion requires train­ing in respect to family/​domestic vio­lence and the impact on the work­place, Swaab are able to pro­vide sem­i­nars tai­lored to the needs of your organ­i­sa­tion, through Swaab’s expert employ­ment and fam­i­ly law teams. Call us on 9233 5544 to dis­cuss the needs of your organisation.