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

Last Updated: 27 February 2019
Article by Monique Robb and Nicole Cini

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 member 's 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.

For further information please contact:

Monique Robb, Senior Associate
Phone: + 61 2 9233 5544
Email: mcr@swaab.com.au

Nicole Cini, Associate

Phone: + 61 2 9233 5544
Email: nlc@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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