The ACTU's proposed domestic violence provisions in all Modern Awards, could have significant implications for employers.
The Fair Work Commission is presently in the midst of a four yearly Modern Award review process. As part of the review process, interested parties have been invited to make submissions by 20 April 2015, as to ways in which Modern Awards, or a specific Modern Award, could be varied.
An interesting submission by The Australian Council of Trade Unions (ACTU) seeks to include a clause in all Modern Awards which would impose a requirement for employers to provide up to 10 days' paid "Domestic Violence Leave" per annum and, once that 10 days is utilised, a further two days unpaid Domestic Violence leave. This proposed Domestic Violence Leave would be in addition to the existing leave entitlements set out in the National Employment Standards (NES).
The ACTU submission explains that the purpose of the proposed Domestic Violence Leave would be to enable affected employees to attend legal proceedings, counselling, appointments with a medical or legal practitioner, relocation, the making of safety arrangements and other activities associated with the experience of domestic violence.
The clause also seeks to impose requirements upon employers to:
- appoint a domestic violence workplace contact person (Contact Person) for the workplace and to train that person in domestic violence issues;
- provide relevantly affected employees with access to an Employee Assistance Program;
- determine whether an employee experiencing domestic violence (and/or any other employees or visitors of the employee) may be at risk of physical harm and if so, to take reasonable measures to ensure their safety;
- approve reasonable requests from affected employees for a change of hours or shift patterns, a change in duties, a change in work locations and a change to phone numbers or email addresses;
- take all reasonable measures to ensure personal information concerning an employee's experience of domestic violence is kept confidential; and
- approve the use of the NES entitlement to personal/carer's leave for any employee who provides care or support to a person who is experiencing domestic violence, including but not limited to, accompanying these persons to legal proceedings, counselling, making of safety arrangements, minding children and other activities associated with the experience of family and domestic violence.
If the ACTU's submission was to result in the changes to Modern Awards which it proposes, employers would have significant requirements imposed upon them - and these would undoubtedly translate into (not insignificant) costs. Further, the requirements would almost inevitably expose employers (and probably Contact Persons) to greater risks and liabilities under Occupational Health and Safety (OHS) laws.
The domestic violence provisions proposed by the ACTU may well become hotly controversial as the Modern Award review process transpires - not only because of the onerous obligations and liabilities which the proposed variations would seemingly impose upon employers, but also because of the fact that domestic violence is considered by many to be a community and societal issue, rather than a workplace issue.
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