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Family violence support for employees raises complex issues

By Charles Power on February 5th, 2018
  1. Workplace Policies
  2. Bullying, Harassment & Discrimination
  3. Privacy & Data Protection

 

An increasing number of workplaces are offering benefits and support for employees who have family violence issues. Employers such as Medicare, CUB, Telstra, NAB, Virgin Australia, IKEA and Qantas, already offer leave to employees who are experiencing family violence.

The Fair Work Commission (FWC) is seeking feedback on model terms for unpaid family and domestic violence leave in modern awards and whether the proposed entitlement should be extended to perpetrators. It has already rejected a claim for 10 days a year of paid family and domestic violence leave.

However, in mid-2017, it expressed a preliminary view that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave.

The Federal Opposition has committed to including the right to 10 days’ paid domestic and family violence leave in the National Employment Standards (NES).

Flexibility

Presently, the NES grants an employee the right to request a flexible working arrangement from their employer to accommodate a circumstance in which they are experiencing violence from a member of the employee’s family, or where the employee is providing care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

Issues to be considered for any family and domestic violence leave policy include:

  • whether casual employees should be able to access the leave;
  • definition of family and domestic violence;
  • whether persons witnessing or needing to care or support victims can access the leave; and
  • what evidence is required by an employee to demonstrate that they had a need to take the leave.

In drafting the policy, you might consider avoiding terms such as ‘victim’, ‘survivor’ and ‘perpetrator’ because they focus too much on the experiences of violence, rather than empowerment.

The situations in which an employee could use the leave, include when they have a court appointment, need to meet a lawyer, need to arrange alternative housing or make care arrangements for a dependant.

There is a risk in exhaustively defining the circumstances.

Striking a balance

A family and domestic violence policy needs to strike a balance between maintaining safety and employment while encouraging people to feel confident about disclosing how their circumstances might affect them at work.

Employees seeking external support from employer-funded employee assistance programs need to be assured that the information they provide remains confidential, given the stigma and judgement that is associated with family violence.  This extends to applications for and the provision of leave days, which should not be recorded or reported on.

The question is whether, in offering support services to employees experiencing domestic violence, an employer may be exposing itself to liability or to an obligation to report the abuse to the authorities.

For example, while Victorian law does not impose a legal obligation on individuals to report domestic abuse involving only adults, it does, however, require that adults with a reasonable belief that a sexual offence has been committed against a child under 16 report the matter to police.

There is an exception to this requirement where there are reasonable grounds to believe that the disclosure would threaten the safety of another person.

Occupational health and safety legislation might oblige an employer to ensure, so far as is practicable, a healthy and safe working environment for its employees.

Stalking and abuse phone calls

Though this obligation would not extend to protecting an employee from any risks they are exposed to outside the workplace, if an employee is working from home, or is subject to  domestic abuse at work (for example, stalking or abusive calls), then the matter does become a workplace health and safety issue.

What action an employer should take in response will depend on the circumstances of the particular case, and what it can reasonably do to protect the employee.

In very serious cases, it might require a report of the matter to the police, and accompanying the individual to the police station, or it might simply involve putting in place procedures to protect the employee from being subject to harassment at work or referring the employee to counselling and support services.

An employer should also be mindful of the potential impact on the persons receiving information from employees about family violence.

A good place to start for employers is by reading through chapters W6 Workplace Policies and Procedures and recently updated L4 Personal/Carer’s Leave in the Employment Law Practical Handbook.

The information contained within these chapters will give employers a greater insight into how to construct policies that enable affected employees to access special leave while protecting their privacy. It’s a balancing act!

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