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Education and Employment Legislation Committee

McINTYRE, Ms Kajhal, Legal Researcher and Project Worker, Rape and Domestic Violence Services Australia

Evidence was taken via teleconference—

C ommittee met at 09 :01

CHAIR ( Senator Brockman ): I declare open this hearing of the Senate Education and Employment Legislation Committee inquiry into the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018. I welcome everyone here today. This is a public hearing, and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Australian Parliament House website.

Before the committee starts taking evidence, I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence giving to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee generally prefers evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the grounds upon which the objection is taken, and the committee will determine whether it will insist on an answer having regard to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

I now welcome Miss Kajhal McIntyre from Rape and Domestic Violence Services Australia, who is joining us by teleconference today. I understand that information on parliamentary privilege, and the protection of witnesses and evidence has been provided to you. Could you confirm that please?

Ms McIntyre : Yes, that's right.

CHAIR: I'd like to invite you to make an opening statement and then we will ask you some questions.

Ms McIntyre : Good morning and thank you for your time. I want to start by acknowledging that we each meet on Aboriginal land today and pay my respects to elders past, present and emerging. I acknowledge that sovereignty was never ceded, and this land was and always will be Aboriginal land. I'm appear today on behalf of Rape and Domestic Violence Services Australia. I work there as the legal researcher and project worker. I'm grateful to have the opportunity to provide you with further evidence following our submission with regard to the Fair Work Amendment (Family and Domestic Violence Leave) Bill.

For over 40 years, RDVSA has provided a range of specialist trauma informed counselling services to people whose lives are being impacted by sexual, family and domestic violence, and their supporters. In addition, RDVSA has provided training and consultation to workplaces in order to support workplaces to prevent and respond to gender based violence, including family and domestic violence. RDVSA fully endorse the comprehensive submissions made to the committee by the ACTU and the ASU.

We welcome the inclusion of family and domestic violence leave as a universal entitlement in the National Employment Standards. This initiative represents an important acknowledgement by the government that family and domestic violence is a workplace issue. Moreover, it signals the government's recognition that existing entitlements, such as the right to request a flexible working arrangement, personal leave and annual leave, are not sufficient to meet the needs of people experiencing family and domestic violence. However, we submit that five days unpaid leave is wholly inadequate to respond to the profound disruptions faced by people experiencing family and domestic violence. We urge that the committee recognise the need to strengthen the bill by legislating for a minimum of 10 days of paid leave accessible to all employees impacted by family and domestic violence.

In our submission to the committee, we outlined three benefits that would flow from the provision of 10 days of paid family and domestic violence leave. First, paid family and domestic violence leave would support individuals experiencing violence to achieve safety for themselves and their children. It may assist them to manage the impacts of violence while still in an abusive relationship, to leave a violent relationship as well as to maintain safety for themselves and their children after separation. Second, paid family and domestic violence leave would support primary prevention efforts by shifting workplace cultures and reducing gender inequality between men and women, the core driver of violence against women. Third, paid family and domestic leave would represent a cost-effective response, reducing the social and economic impacts of family and domestic violence on individuals in society at only a marginal expense to employers. However, to achieve the full benefit of these objectives, RDVSA believe the bill must be amended in three key ways—leave must be paid, it must be provided for a minimum of 10 days and it must be extended to all people who may be impacted by family and domestic violence. For the remainder of my opening address I'll briefly outline the case for each of these amendments.

The provision of paid leave is essential to ensure that individuals experiencing family and domestic violence can access not only job security but also financial security, which is often critical to securing safety. As it stands, the government's scheme requires people experiencing violence to make a choice between safety and their pay cheque. This is unacceptable and ultimately a false choice for many people, given that financial security represents a key determinant to an individual's capacity to achieve safety. Research shows consistently that financial security gives women the means to avoid and leave abusive partners, affording them the safety, security, independence and wellbeing that is necessary following violence. However, employees experiencing family and domestic violence commonly face financial difficulties as a direct result of their experience. This may be the result of many factors, including financial abuse, the disruptive nature of family and domestic violence on career progression and the high costs involved in leaving a relationship. So long as family and domestic violence is unpaid, women experiencing financial hardship may be unable to access the entitlement and therefore unable to access safety. Alternatively, where women experiencing financial hardship do access the entitlement, they may find themselves in an even more precarious situation as a result and, in some cases, be forced to return to an abusive relationship.

The provision of 10 days leave instead of five is necessary to ensure that people experiencing family and domestic violence leave have sufficient time to attend to the many and profound disruptions that can be caused by family and domestic violence. As the Law Council highlighted in their submission to the committee, complex family law matters can involve multiple hearings over a period of months and require parties to attend appointments with court appointed family consultants, police prosecutors and lawyers. However, that person may still require additional time for medical appointments, finding alternate accommodation, relocation, psychological appointments and attending to children's issues among many other things. Five days is simply an unrealistic time frame to accomplish these many and varied tasks.

Finally, RDVSA are concerned that the definitions of 'close relative' and 'immediate family' to be inserted into the bill are excessively narrow and may exclude countless categories of people who are deserving of protection from family and domestic violence. Specifically, the act appears to exclude employees from claiming leave in relation to violence perpetrated by a current partner who does not currently live with the employee, family members such as uncles, cousins, stepparents, stepchildren or other in-law relatives, carers for people with disability or aged people as well as housemates. The exclusion of these types of violence from the scheme is contrary to widely accepted and well-established definitions of family and domestic violence. As such, RDVSA recommend that the committee consider the need for a broader definition, such as that adopted in the Family Law Act.

In conclusion, RDVSA recognise that the bill does represent a step in the right direction. However, we call on the committee to follow the example of New Zealand and legislate for 10 days of paid leave for all Australian employees. Thank you very much.

CHAIR: Thank you very much, Ms McIntyre. So whilst you support the bill you do see scope for an extension at some point in the future?

Ms McIntyre : That's correct.

CHAIR: You are aware that there will be a review of the bill in around 2021?

Ms McIntyre : Yes.

CHAIR: Could you talk to us about the place of this in terms of the overall scope of government's efforts in this regard. Just today, Minister O'Dwyer will be announcing the next phase of the Stop it at the Start campaign, which I'm sure you're aware of. Obviously, we need to balance things like this, which is acting after a particular episode of violence has occurred, and introducing some preventive measures. Could you talk about how you see the balance of those two things.

Ms McIntyre : We see family and domestic violence leave as playing an important role in responding to violence as well as preventing violence in the first place. We see family and domestic violence as a key recognition by the government that workplaces do have a key role in responding to family and domestic violence. Historically, the workplace has been seen as perhaps somewhat separate from the issue of family and domestic violence. But what we are recognising more and more is that the workplace is actually a key setting in which men's violence against women can be prevented and reduced. The workplace is the place where most men and women spend much of their daily life. Most women—in fact, two-thirds—who are victims of domestic and sexual violence are in paid work, as are most men who perpetrate family and domestic violence. We know that violence and abuse affect women's participation in paid work and impose substantial costs on workplaces and businesses, as well as the Australian economy more broadly. We also know that on the one hand workplace cultures may tolerate or contribute to men's violence against women but on the other hand they can play a key role in prevention by creating and changing norms towards violence towards women. In that sense, we can see that workplaces are really essential to the response to family and domestic violence.

Senator WATERS: Good morning, Ms McIntyre. Thanks very much for your evidence and your excellent submission. I want to take you to a few points you have touched on already in your opening statement. You mention that New Zealand has recently legislated for 10 days paid leave. Can you tell us a little bit more about the scope of that? Is that for all employees? Have they used that broader definition of family and/or partner that you mentioned? Have any other countries around the world legislated for paid leave?

Ms McIntyre : Unfortunately, I am not overly familiar with the New Zealand scheme. I do believe that it was broad in scope, it applies to all employees and it will afford 10 days of paid leave. I would be happy to provide you with more information about that scheme on notice if that would suit you.

Senator WATERS: If you've got the time, that would be wonderful. I might ask some of the other witnesses that same question. I know that your resources at RDVSA are very stretched, but if you have some information to hand, please send it through. That would be great.

Ms McIntyre : I'm sorry I can't be of more assistance.

Senator WATERS: That's fine. I'll see if other witnesses later in the day are able to answer that. You mentioned—and a few of the other submitters have raised this point to—that the definition in this bill is not as broad as you think it should be. I think you said the Family Law Act had an expanded definition. Could you talk to us a bit about whether that is a better definition and how it differs from the one in the current bill.

Ms McIntyre : Sure, I'd be happy to walk you through that. In the current bill, in section 106B(3), the definition of a close relative of an employee includes a member of the employee's immediate family. Or in subsection (b) a close relative is somebody who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. The definition of immediate family is in section 12 of the Fair Work Act. That defines immediate family as:

… a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or … a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

However, the problematic part of this definition is the definition of de facto as well. De facto is specifically defined in the Fair Work Act to mean:

… a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis …

That means that a current partner who does not live with the employee—whether that be because they are in an intimate relationship but have never cohabited or because, importantly, the perpetrator no longer lives with the victim as a result of the violence—will no longer be included in the definition supplied by the act.

The list of family relationships is also extremely narrow within the Fair Work Act. What it excludes are relationships like uncles, cousins, stepparents, stepchildren and other in-law relatives and also broader definitions which have been acknowledged as alternatives for family and domestic violence relationships, such as carers for people with a disability, carers for elderly people and other cohabiting residents—housemates or other relationships that cohabit together. This Fair Work Act definition is far narrower than the definition included in the Family Law Act. I might refer you to the Law Council's submission, which talks on this point in detail. The Family Law Act's definition is inclusive of all types of step-relationships and it includes nephews and nieces, uncles and aunts, cousins, relatives of their spouse or partner and a variety of other relationships, so we would say that that definition is preferable.

Senator WATERS: Thank you. That's very useful. I've just flipped to the page in the Law Council's submission too, so perhaps we can discuss that a bit later.

CHAIR: My understanding is that a de facto who previously lived with a person is included, but we'll clarify that with the department later on.

Senator WATERS: I think the point Ms McIntyre is making—and it bent my head a bit too—is that you might still be partnered with this person but you don't live with them.

CHAIR: Yes. I think that's covered, but we'll need to clarify that with the department.

Senator WATERS: I think it's only covered if they used to live with you, not if they never lived with you. Is that right, Ms McIntyre?

Ms McIntyre : Exactly, yes. The explanatory memorandum does clarify that a former partner who no longer lives with the employee will be covered but, because of the restrictive definition of de facto in the Fair Work Act, it appears that a current partner who does not live with the employee will not be covered.

Senator WATERS: Does that mean that the definition of spouse doesn't include the situation you've just described?

Ms McIntyre : My understanding is that a spouse would only include somebody who is married to the employee. While de facto has a broader definition in other parts of the law, in the Fair Work Act, it is specifically defined as requiring the two parties to cohabitate. That's quite problematic as it excludes de facto partners who are not living together—they may meet the definition of de facto under other parts of the law through other ways that their relationship is inter-related—and excludes violence perpetrated by intimate partners who do not meet the definition of de facto. We would say that both those categories of people need to be included in the protection of the act.

Senator WATERS: Do you have any statistics or are you aware of anybody who collects any stats on violence perpetrated by partners who are not living together, to quantify how big this definitional issue is?

Ms McIntyre : I don't have that stat off the top of my head, although I'd be happy to provide that on notice. I know that ANROWS does collect statistics about violence perpetrated by intimate partners who do not meet the definition of de facto, and there is a significant proportion of people affected by violence in that category.

Senator WATERS: I don't think we're hearing from ANROWS today, unfortunately, but perhaps one of the other witnesses might shed some light on that—or, if you've got that information to hand, if you could flick that through then that would be super useful.

Ms McIntyre : Absolutely, no worries.

Senator WATERS: You mentioned in your submission the cost of providing paid domestic violence leave. Can you run us through those statistics?

Ms McIntyre : Yes, absolutely. The statistics that I cited were from a 2016 Australia Institute report which calculated that, based on ABS data and other sources, the overall cost to Australian employees of providing paid family and domestic violence leave to all workers would range from around $80 million to $120 million a year. They described that figure as 'so small it would be difficult to measure'. They estimated that the incremental payments to workers taking the leave would amount to 1/50th of one per cent—0.02 per cent—of current payrolls. It's extremely marginal in the context of the costs that family and domestic violence has to our society and economy more broadly.

Senator WATERS: Given that very small cost and the obvious benefits of workers being able to still receive a salary whilst they're trying to attend to matters to keep themselves and their families safe, are you aware whether there are any employer groups or small business groups that are objecting to the paid leave on the basis of cost or are we just assuming that they object?

Ms McIntyre : I'm not aware of that. I understand that all studies that have been undertaken into employers who currently provide family and domestic violence leave have cited that the costs are manageable and that they have had no problems with providing the leave. I understand that Commonwealth Bank are providing evidence later today; they are one such employer that is currently providing family and domestic violence leave and they have cited the costs as manageable.

Senator WATERS: I'll look forward to discussing that further with them. Can you run us through the cost of domestic and family violence to the economy? Obviously, there's a massive emotional and personal cost, but I believe the economic impacts have been estimated as well.

Ms McIntyre : Yes. They have been estimated by KPMG in their 2015 report as being between $22 billion and $26 billion in 2015-16, which is absolutely enormous.

Senator WATERS: Does the proportion of $80 million to $120 million, which is the estimated cost of 10 days of paid FDV leave, compared with the cost to the economy of $22 billion seem persuasive to you that that's a good investment to make?

Ms McIntyre : It absolutely does. It's really a drop in the pond, in my opinion. The other important point to note is that research has shown that family and domestic violence has significant costs to workplaces themselves. It results in higher rates of absenteeism, loss of productivity, reduced employee morale and increased need for support in the workplace for victims. The cost of providing paid family and domestic violence leave to employers is actually likely largely or completely offset by reduced staff turnover as well as improved productivity.

Senator WATERS: The staff turnover point is a particularly good one because if people aren't able to take leave, if they need longer than five days or if they simply can't maintain that connection to the workplace because they need to move cities, for example—do we have any statistics on how many survivors of violence do need to sever their connection with the workplace?

Ms McIntyre : I don't have that statistic specifically, but what might assist you is some research conducted in New Zealand which shows that, for every woman whose experience of violence was prevented as a result of workplace protections, there would be a saving of an average of $3,371 in production related costs for the workplace.

Senator WATERS: Can you run me through that again? I'm not across that figure.

Ms McIntyre : Sure, no problem. For each woman whose experience of violence was prevented as a result of workplace protections, the savings in production related costs for the workplace would be an average of $3,371.

Senator WATERS: Based on the average wage, that would probably be a greater saving than the cost of 10 days paid leave. Would that not be right?

Ms McIntyre : Exactly, yes.

Senator WATERS: That's New Zealand figures.

Ms McIntyre : It is.

Senator WATERS: Can you let us know where that study was from or who conducted that?

Ms McIntyre : Sure. That study is cited in the ACTU submission.

Senator WATERS: I have read that one. I must have missed that bit.

Ms McIntyre : Do you mind if I provide that reference on notice?

Senator WATERS: Yes, sure, and perhaps we'll take that up with the ACTU as well, because I think they're coming along a bit later in the day. I might have a few questions later but I'm happy to pass to other folk.

CHAIR: Senator Marshall is fine, so you can keep going if you want to.

Senator WATERS: Great. You cite in your submission the ACTU's estimate of how much it costs and how long it takes to leave a violent relationship. Are you able to talk us through those figures?

Ms McIntyre : I can certainly give you an overview although I imagine that ACTU and ASU would be best placed to provide the background to their statistics. The research was based on figures provided by the members of the ASU who are front-line workers in the family and domestic violence sector. They estimated that the cost of leaving an abusive relationship and finding a new safe place to live was, on average, $18,250—an absolutely staggering figure—as well as 141 hours worth of time. So the costs involved in those estimates were related to truck hire, which is $260; solicitors, $2,500 for an initial appearance and $5,000 for court appearances; rent, $3,000 bond and four weeks rent, as well as numerous other costs. In terms of the figure of 141 hours, the most time-consuming elements identified by the ASU included finding a new property, which could take up to 40 hours; seeking support groups as well as Centrelink benefits, estimated as 32 hours, and the time involved in relocating, which was 14 hours. So those were some of the kinds of figures that were taken into account in reaching those averages.

Senator WATERS: I'm contrasting that with a figure you've extracted where you say one in four households have less than $1,000 in cash savings. How on earth are women meant to find $18,250?

Ms McIntyre : Exactly.

Senator WATERS: And how is having unpaid leave going to help them cover those costs?

Ms McIntyre : Exactly. Those are the questions that we would be asking. I'd also draw your attention to the fact that women who have experienced family and domestic violence are far more likely than your average person to be experiencing financial hardship. That's because of numerous factors. Firstly, they may have experienced financial abuse directly from the perpetrator. The perpetrator may have controlled their access to income as well as their ability to engage in employment and study. In addition, the women who've experienced family and domestic violence are more likely to have had a disruptive work history and consequently to be on lower personal incomes. They're more likely to have had to change jobs more often and are employed at higher levels in casual and part-time work than women with no experience of violence. So, as a result, they're more likely to experience hardship. Then, of course, because they are required to expend these significant costs in leaving the violent relationship, they are again more likely to come into contact with financial hardship. While your average household is already going to struggle to get together $18,000, a woman who has faced domestic and family violence is three steps behind in that sense.

Senator WATERS: Which I guess goes to the need for better funding of these front-line support services, which we've gone over in many an inquiry in previous times and which I hope to see some positive results on at some point in the future. Please, powers that be!

Ms McIntyre : Yes, we completely agree.

Senator WATERS: How many people do you think will use unpaid family and domestic violence leave?

Ms McIntyre : The figures from workplaces that have already provided family and domestic violence leave show that the take-up is quite a low number. That's not to say that it's not a crucial entitlement to afford but merely that the costs will be manageable because the take-up rate is quite low. My understanding is that, for example, the Victorian government has provided family and domestic violence leave to their employees since 2016 and the take-up rate in one year, I believe, was within the range of 50 to 60 employees. It was my understanding. It's relatively low.

Senator WATERS: Do you think that, if the leave were paid, more people would use it but also that the leave being paid would better allow women to be able to permanently leave violent relationships?

Ms McIntyre : Absolutely. Financial security has been shown, time and time again, to be a key determinant to women accessing safety. Also, as discussed in the Queensland government's submission, the provision of pay does provide an incentive to women to disclose their violence to their employer. That initial incentive to disclose is really important in terms of accessing not just the entitlement itself but also support in a broader sense—so access to support networks and other services that the workplace might be able to link them up with. So having that provision of pay is necessary to give women the additional confidence that coming forward is going to be worth it in the long run.

Senator WATERS: You touched on this earlier, but how else does that change workplace culture, and how can that help prevention of domestic violence more broadly—having that acknowledgement that it's a workplace issue and that support available for employees—if it were paid leave?

Ms McIntyre : We think that providing paid leave specifically would cement family and domestic violence leave as a legitimate employment entitlement, on the same level as accepted leave entitlements like sick leave or compassionate leave. In that sense, it would establish a workplace culture that accepts shared responsibility for supporting people who are experiencing domestic and family violence. We've also seen, through our work consulting with workplaces, that workplaces that don't provide training to their managerial staff don't necessarily implement their domestic and family violence policies effectively. However, having something like paid family and domestic violence leave would be a great incentive to workplaces to instigate such training, and that would assist managers to develop the kinds of skills necessary to identify violence, to respond compassionately, to engage in safety planning with their employees and, in a broader societal sense, to start to shift those violence-supportive attitudes which exist across Australian workplaces.

Senator WATERS: Can you tell us a little bit more about that last point—the demonstration effect and that broader cultural change that it might kick off.

Ms McIntyre : Sure. I guess, in terms of primary prevention, there are a few different levels. We see that workplaces can contribute to the issue of family and domestic violence in a few ways. They can contribute to the broader gender inequalities in which violence against women flourishes, and they do that by promoting unfair divisions of labour, as well as unequal power and norms of male dominance. We also see that workplaces can contribute to the issue of family and domestic violence by institutionalising and encouraging violence-supportive norms. Within those kinds of circumstances, women face greater risks of victimisation, and the male members are often more likely than other men to tolerate as well as to perpetrate violence. Finally, workplaces might contribute to violence against women in the ways that they respond to employees who are victims of violence or its perpetrators. They can directly assist someone to access safety or, when responding to perpetrators, directly condone the violent behaviours. So there are many different ways that workplaces interact with the issue of family and domestic violence, and instigating something like family and domestic violence leave, especially paid leave, would be able to target workplaces at each of those levels. It may shift general attitudes towards violence against women. It may begin to address the economic inequalities and hence the core driver of violence against women, which we know is gender inequality. It may also begin to shift societal responses to violence against women.

Senator WATERS: Good. If we've got time—what time does this witness finish?

CHAIR: Five more minutes.

Senator WATERS: Great. Do we have any evidence on the pattern of usage of paid leave, or even unpaid leave for that matter, for domestic and family violence issues? Are people likely to take that in a block, or would they need to take it one day here and half a day there? Is there any evidence, perhaps from any of the employers that already provide this leave, of a discernible pattern in which employees avail themselves of that leave?

Ms McIntyre : I don't have any statistics on hand, but I do believe that people are more likely to take it in multiple blocks. Because of the nature of the leave, there are likely to be, for example, several court dates. There might be particular medical needs. So I believe the pattern is that it's more likely to be taken in separate blocks, as opposed to one single block.

Senator WATERS: Lastly, do you have any information about the practicalities of an employee seeking permission to take the leave, whether it's paid or unpaid? Are there any requirements for the employee to prove that that's the reason why they need to take the leave?

Ms McIntyre : My understanding is that the bill does allow employers to request some evidence that they have used the leave for that particular use. I don't believe that the bill specifically requires them to prove the existence of violence to any particular burden, although they would be required to provide some evidence that they had used the leave for that purpose. So our recommendation would be that those evidential requirements be as minimal as possible. We know that there are significant barriers to women disclosing violence in the first place, and so any additional burden on them to provide evidence is likely just to discourage women from accessing this entitlement. However, at the same time, we understand some employers' concerns that the leave could be misused there. It may be appropriate to have some minimal evidential requirements.

Senator WATERS: What do you think would be the appropriate place to draw that line? What do you think might be a fair and reasonable piece of evidence? Would a stat dec suffice? Do you think a doctor's certificate would be required? What do you think is the most appropriate piece of evidence there?

Ms McIntyre : I would suggest that perhaps it might be appropriate for an employee to provide, for example, evidence that they did in fact move house on that day. What would not be appropriate would be to require something like a conviction or evidence that they had accessed the police or had a protection order in place. So we wouldn't be looking for any evidence to a legal standard, because, as we know, many women choose not to engage with the legal system, often for entirely legitimate reasons. So any evidence that would be required would go more towards the practicality of what that particular leave was used for. So it could be something like evidence that they did attend a medical service or a counselling service, rather than evidence that the abuse did occur.

Senator WATERS: Is that just for privacy and safety reasons?

Ms McIntyre : Privacy and safety reasons in terms of not having to prove the abuse?

Senator WATERS: Yes.

Ms McIntyre : I guess it would go more towards the recognition that there are significant barriers to proving the existence of domestic and family violence and that women should not be required to prove the violence to a legal standard in order to access safety.

CHAIR: We will need to leave it there. Thank you, Ms McIntyre, for your time this morning.

Ms McIntyre : Thank you very much, senators. I really appreciate your time.

Senator WATERS: Thanks, Ms McIntyre. Well done.