Domestic Violence Leave

Like many, I was very pleased to see Rosie Batty named as Australian of the Year for her work in raising awareness and promoting the prevention of domestic violence. There are many working tirelessly in this field, but in the context of her own personal tragedy Ms Batty’s work is particularly special. Few of us would be able to go on after experiencing a tragedy such as hers, but to have the strength to reflectively use her experiences to prevent others sharing her own loss is truly courageous, and she is a most deserving recipient of the award in my opinion.

Behind the scenes, in workplace law, the issue of domestic violence has been approached in a less satisfactory matter. As a major social epidemic, it requires non-political and bi-partisan cooperation from government, employers and unions alike. But unfortunately domestic violence seems to have been distilled down to a stereotypical arm-wrestle between employers and unions over the usual entitlement – paid leave.

Domestic violence leave (‘DV leave’) is a relatively new concept which has enjoyed rapid growth over the last 5 years. Currently, nearly 2 million Australian workers are covered by DV leave, as a result of Union collective bargaining. The ACTU are now pushing hard for the statutory inclusion of a minimum of 10 days’ DV leave for all full time employees, pro-rata entitlements for all part time employees, and have lodged a claim in the Fair Work Commission. This article by Jenna Price outlines some of the developments in greater detail.

I agree with Ms Price’s sentiments regarding domestic violence, but do not agree that paid leave will achieve a reduction in domestic violence. Having spent nearly 20 years negotiating with unions, I have become accustomed to their unique attitude to paid leave as not only the primary goal of negotiation, but as a pancea for all ills – the idea that any problem or challenge faced by employees in their personal lives will be overcome by their employers paying them to stay away from work. From the employers’ perspectives, the cost of leave amounts to not only the actual cost of wages paid, or replacement staff, but is compounded by loss of productivity and business cohesion. I have worked on Enterprise Agreements where some full time staff members were entitled to as much as 75 days paid leave. If all of this is taken, it amounts to the employee being absent on average for nearly 2 days out of 5. Most full time employees across a variety of industries would agree that this type of absence makes it very difficult to achieve productivity by their own standards and goals, let alone those standards required by their employer.

Further, there would seem to be a logical incongruence with a contention that DV leave will ‘fix’ domestic violence. The contention would seem to be that additional time off will be to avoid coming to work with bruises, or to attend court or counselling without loss of pay. This seems to be an exclusively reactive solution, aimed only at ameliorating the consequences of domestic violence, rather than attacking the root cause. Indeed, there is an implied suggestion that DV leave can actually be a way to hide domestic violence from colleagues, which I can’t accept as a positive goal. Ms Price quotes the costs of domestic violence on the Australian community as nearly $14 billion, but nowhere is there a suggestion of how DV leave will reduce the incidence of Domestic Violence. In fact, if we increase paid leave on its account then the attributable costs will only increase further.

But the key unsatisfactory issue to me is that DV leave only benefits those who are in full time or part time employment. These people do not represent the whole community, nor even the whole workforce. It never has, and increasingly never will. The National Employment standards already provide for 10 days personal leave, and 20 days annual leave for full time employees, as well as provisions for flexibile workplace arrangements for victims of domestic violence. Whether or not this is adequate is debatable, but not the real issue here. The real question is should we be arguing for more leave entitlements for full time employee victims of domestic violence, when casual employee victims of domestic violence currently have nothing at all? While domestic violence occurs across all categories of society, there is no question it has particular prevalence among sections of the community that have already been marginalized and casualized by the Australian workforce. Paid DV leave will only serve to further drive the wedge between those employees with full time benefits and those without. Diverting more money from employers toward only one section of the workforce, and further incentivising those employers toward casualization, is not an equitable solution to a social problem of this magnitude. So if we would like to see employers kicking the tin a bit harder, then let’s come up with a solution for employer involvement which spreads the benefits fairly, and is aimed at pro-active rather than reactive measures.

Firstly, s 351 of the Fair Work Act, which provides the grounds under which employees should be protected against unlawful adverse action at work, should be amended to include victims of domestic violence. This would protect full time, part time, casual workers, employees in probationary period, and even prospective employees, from being adversely treated because they or members of their family are victims of domestic violence. Once alleged, the onus is on the employer to prove this action has not been taken for this reason. This would be a great starting point, which would cost the government and tax payer nothing. Further, the true costs of this provision would be borne exclusively by the employers that are at fault.

Secondly, we should acknowledge that preventing domestic violence is best achieved by keeping people away from the danger (which by definition is at home), not by keeping them away from work. Based on my rough estimates, 10 days mandatory Domestic violence leave would cost employers on average approximately $50 per year per employee. (Based on Ms Price’s contention only about 1% of employees made use of leave.) If this could be levied across the entire workforce, couldn’t this money be spent better on the provision of free counselling, accommodation centres, support or legal advice through the workplace? $50 per employee throughout the Australian workforce would go a long way for those in need, irrespective of whether they are full-time, part-time, casual, or unemployed. When the Government, employers, and unions start working together in this direction, the potential for real change is huge. But as long as the issue is fought along these traditional and anachronistic industrial relations battle lines, genuine solutions will continue to elude us.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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Helen Carter

Helen has practised exclusively in employment and industrial law for over ten years and founded PCC Lawyers in 2010, having previously a partner of a leading Australian specialist workplace relations firm. She is an accredited specialist in Employment Law by the Law Society of New South Wales. Helen is a working mother who is committed to equal opportunities at work. She is a passionate sports fan, particularly in relation to NRL. Both of these are strong themes of this blog. Contact her here.

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