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Education and Employment Legislation Committee

LAMB, Ms Dominique, Chief Executive Officer, National Retail Association

Evidence was taken via teleconference—


CHAIR: I now welcome Ms Dominique Lamb from the National Retail Association, who is joining us by teleconference. Ms Lamb, I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Could you just confirm that.

Ms Lamb : Yes, I confirm it has been provided to me.

CHAIR: Could you please go ahead with your opening statement, and then we'll ask you some questions.

Ms Lamb : Wonderful. We seek to predominantly rely on our submissions, which you all have there. According to the Australian Bureau of Statistics, women aged between 18 and 24 years are the demographic most likely to be victims of domestic violence. Given that retail is the largest employer of young people in Australia, coupled with the fact that one-third of the women in our industry are between 18 and 24, we believe that, as an industry association, we have a duty to address domestic and family violence in an appropriate manner. We've demonstrated as an association, and certainly our membership has demonstrated, a commitment to tackling this issue. We commissioned research in 2016 to assess the impact of domestic and family violence on the retail industry. The results that we received were sobering in the sense that, in 2014-15 alone, 45,000 women working in retail experienced some form of domestic and family violence. In additional to emotional pain inflicted on these women, it also cost the industry $62.5 million that year in lost productivity, absenteeism and staff turnover. It also resulted in a direct cost to employers of about $1,404 per store.

Following this research, the National Retail Association has made active commitments to advocate on behalf of its members with respect to this issue. Earlier this year, when the full bench of the Fair Work Commission determined to vary the 120 modern awards to include an entitlement of five days unpaid domestic violence leave, we fully supported this measure. Since this entitlement came into effect on 1 August 2018, we've actively sought feedback from the members. At this stage, what we are hearing from them is that the cost of this implementation has been quite small to their businesses. However, they are running into a number of other issues that arise, including things around confidentiality, privacy, their duty of care in relation to safety, and other issues that flow on from having the knowledge that somebody is at risk.

The National Retail Association in principle supports the inclusion of family and domestic violence leave in the National Employment Standards. We do, however, have two issues which are outlined in our submission: that there be a protection against some members receiving a double benefit, where an employee receives the entitlement under both the modern award and the National Employment Standards—we believe that it should be a level playing field for all employees—and provisions that clarify privacy and confidentiality obligations for employers under the current drafting. There is the potential for an employer to be put in an impossible position when balancing the privacy of their employee and assessing the risk to another individual. They are my submissions.

CHAIR: Great. Thank you very much. I'll start with a couple of questions. You have raised some technical issues in your submission. Apart from the one you just talked to us about, which is effectively the potential for a double allocation, are there any other interactions with other entitlements that you believe may be of difficulty for your members?

Ms Lamb : Certainly we haven't received feedback that that's the case. At this stage, our members are quite satisfied with the evidentiary basis on which people can request this type of leave, and we haven't had any negative feedback about the leave itself being in place or the five days. So the membership is certainly satisfied.

CHAIR: I assume that you support the legislation on the basis that extending domestic violence leave to the National Employment Standards effectively levels the playing field for most businesses operating in this space.

Ms Lamb : That's correct. For us, if you put it into the National Employment Standards, there is going to be one entitlement for all industries and for all employees, whether they're covered by an enterprise agreement, covered by a modern award or non-award-covered. Certainly our membership supports that, because it's going to be a national standard. It won't be different in different cases, and it will be easy for them to manage and implement.

CHAIR: Do many of your members, through their current agreements with employees, offer beyond this minimum standard? Do they offer a component of paid domestic violence leave?

Ms Lamb : We do have some members that are offering a component of paid domestic violence leave. What we tend to see more is that, within certain enterprise agreements, the number of days will be higher than the five days. Typically, they tend to be around 10 days. I have not come across one of our members that has had anything in excess of that or has had the full amount paid.

CHAIR: Obviously, this safety net provision is for unpaid leave. You mentioned that, even though it was unpaid leave, there is still a cost to business. Can you just talk us through that.

Ms Lamb : Certainly. When you have an employee that is obviously engaged to perform a role, if they are taking unpaid leave, it means that they are out of your business for that time. What that can mean, certainly in our sector, is that they need to be replaced either by a casual worker or by a part-time worker or by somebody else to fulfil that particular role in the business for some time. I should clarify that, even though we are the National Retail Association, we represent anybody from fast food, quick service and anything that's customer service facing. So that is typically where we would see an additional cost to the business. Whilst they're not paying for the leave, they will be paying other workers who are potentially at a higher rate to fill in for those times. We have had some discussions with our members about what they have seen in terms of an increase at this stage. We know—and it is included in our submissions—that we have spoken with one member with a workforce exceeding 2,000, and they're budgeting for an increase in cost of 0.05 per cent. So it's quite negligible in terms of what that particular business would experience, but obviously, if you're a small business and you have a small team, it could be higher. But we're yet to have any data on that.

CHAIR: We've heard from a previous witness, and in a number of submissions, people advocating for various levels. The average seems to be 10 days of paid leave. Obviously, some larger retailers and larger businesses already offer that kind of provision, but could you talk to us about the potential impact on smaller businesses, particularly your members.

Ms Lamb : Certainly. We know from our research that, if somebody is affected by domestic and family violence, they are likely to need up to 18 days leave. When we went through the Fair Work Commission process, we certainly supported the 10 days leave, and then the commission, once it had heard all of the different industries' evidence on this, came down to the five days unpaid leave. In our view, that satisfies what small business and medium-sized business could sustain at this time. If you are a large business and you are able to afford to pay somebody for 10 days leave in order for them to take that time off to do whatever it is that they need to, you obviously have a bigger workforce base and are more likely to be more profitable, whereas, when we talk about people like franchises or small businesses who might have a team of, say, five to 10 people, we know at this time that labour costs are their primary concern. Even if we have a look at what their opening rates are on Sundays, for instance, we know that small business owners are choosing to work within their businesses as opposed to having employees in there. So what they're saying to us right now is that, if they have to sub in a more expensive person in order to cover for longer than five days, it would be expensive and it would cause them problems in terms of cash flow with their business. So we say that the five days that has been identified by the Fair Work Commission is certainly sufficient for those smaller businesses. Of course, if you are a large business engaged with enterprise bargaining or you have a number of award-free employees, you can choose to go above and beyond if that's something that your business is capable of. But making it a minimum standard would certainly put them under pressure.

CHAIR: Thank you, Ms Lamb. I'll hand over to Senator Waters.

Senator WATERS: Thanks, Ms Lamb, for being here today and for your submission. I want to keep going on that point about the cost of acting versus not acting when it comes to paid family and domestic violence leave, as opposed to unpaid. You took us through those statistics. About 45,000—a shocking number—of women employed in retail had experienced some form of family and domestic violence, which cost approximately $62½ million per year in lost productivity. Have you estimated the cost of paying ten days paid family and domestic violence leave and whether it might actually be less than $62½ million per annum for your sector?

Ms Lamb : We haven't, but it's probably something that we could do and I could take on notice for you. The only issue, of course, would be that in different businesses people are paid at different levels. What we would be able to give you would be the different levels based under the modern award as probably a base for those calculations. But it would be very, very difficult only because the businesses are quite complex. They go from your casual worker all the way through to head office and above. That part would mean that our figures probably wouldn't be as accurate as we'd like.

Senator WATERS: If you have the capacity to do that sort of number crunching, I think that would be very instructive. We're trying to gauge the true cost of not providing paid leave, and it seems to us that the figures before us are very persuasive and that in fact it may be that it's cheaper for employers to provide those 10 days paid leave than to suffer the loss of productivity, the absenteeism and the staff turnover, not to mention the emotional damage to their staff members and to staff morale. It might be economically, as well as from a human perspective, more beneficial to provide that leave. So those sorts of figures would be very helpful if you've got the ability to do that. You touched on this, but I'm keen to know: do you support having paid leave for family and domestic violence?

Ms Lamb : Where a business can afford to provide somebody with paid leave, in our experience, our membership typically will do that. We have a number of anecdotal experiences from our membership where they say to us: 'We've had somebody come in and make a disclosure and we've been able to enact a safety plan because we are large enough to change their routine in the business. Where they've needed leave and they haven't had leave, we've allowed them to be paid.' There are even instances where people have gone above and beyond and sought to find them emergency accommodation or put them in touch with different community groups. I guess the concern for us is that not all businesses have the sophistication or understanding of the issue and we are seeing really big understanding gaps certainly from that small and franchise end all the way through to the bigger end of town. At this stage, certainly there are some people who are paying, but we also accept that across our membership it's not a blanket rule and certainly not something that they could all do.

Senator WATERS: You've identified there that you think it's a difference in the level of understanding about the issue. What sort of solutions would you see to that issue?

Ms Lamb : I think that there needs to be quite a significant education campaign. I'm not sure if you've had a look at what is currently available in terms of the Fair Work Ombudsman website and education resources about this particular issue, but they're quite limited, especially in a practical sense. What we find is that sometimes we'll have a perpetrator that might be very well known to a particular store because they've been a long-term partner of an individual. They will call in and they will seek to find out information about when she is working and where they might be able to catch up with her. Because the disclosure hasn't been made to the store, because of confidentiality and privacy reasons and all of those kinds of things, sometimes that information is disclosed and it does put people in danger. In addition to that, we've also had instances where helpful co-workers have said, 'You know what? I'm going to walk you to your car to make sure that you're safe, 'and then other altercations have occurred with a perpetrator who has come and accosted both of them on the way to the car. That then leads to a number of safety issues. It's obviously very difficult to protect your workers if you can't disclose the exact situation.

The other thing where there's a lack or a disconnect in terms of the issue is that we know that, when a woman chooses to leave a situation like this, they are significantly more likely to be murdered or to be quite significantly injured in that first three months. And so, where somebody in a workplace comes to you and says, 'I've just left my partner. This is the situation that's occurring,' you know that where they worked, where they typically are on a regular basis, has a heightened level of safety issues. As an employer, you've got a higher duty of care to that person but also probably to the other workers in that environment. In addition to that, we also don't want to see workers discriminated against, and that's certainly something that obvious membership is very passionate about. They want to be able to treat people with respect and as they should be treated, but it's such a complex issue that sometimes we find that employers will start this process with an individual who's experiencing domestic and family violence, and then the person will decide to return to their partner, which is very common. But, because there is a lack of understanding about this being very much a journey and somebody making those choices to take control of their life and removing themselves from the situation, it can become a source of frustration, which is where we see friction occur between employees and employers. In our view, obviously there are places like CEO Challenge that do a very good job in terms of education. There are Our Watch and White Ribbon. But all of that information and that really in-depth understanding of the complexities of the issue are certainly not travelling down to those small and medium-sized businesses. Often they don't even know what they're looking at, especially if you've got someone who's coming to work all the time because they are trying to get away from their partner or if they have abandoned or are perceived to have abandoned their work because their partner is not leaving their home. It's little things like being able to have safe conversations and not put an employee at risk when they haven't turned up to work and knowing when you can and can't speak to them. It's those very practical things around safety where we're just not seeing the detail come down. Associations obviously have a role to play in that, and certainly we can cope with it with our advice line, but not everybody is a member of us. So it's that real expertise that I think probably needs to be pushed further, whether it's by the regulator or different unions and associations. It's definitely got to be a collective effort, but there's quite a way to go.

Senator WATERS: I like your suggestion that it's a joint effort and that there's a role for unions, for yourself as the relevant association and for the regulator to all help fill that information gap and increase the understanding of employers of not just what their obligations are but also how they can practically assist and respect those privacy issues whilst at the same time guaranteeing the safety of relevant staff members. Is that something that the association would want to be further involved in?

Ms Lamb : Absolutely. I think we're uniquely placed. Certainly, from my background, I will disclose that I sit on the management committee of Women's Legal Service Queensland, which is a family and domestic violence pro bono legal service. Because I am an employment lawyer and I also have an interest in that area, I am uniquely placed in relation to this particular topic. But, in saying that, I've been overwhelmed by the fact that our membership is so interested in effectively helping individuals within their business. We see it especially with youth mental health as well. We certainly see it in the way that they approach youth crime, which we know is often linked to domestic and family violence as well. So it is very much a case that our industry want to get behind their employees. They want them to be happy and productive and they see education and being able to help them through difficult circumstances as a way to bond them to their businesses.

Senator WATERS: That's very encouraging. I'm really pleased and proud that there's that sort of response. It's much-needed. I think that's how we can make that broader cultural change.

You flagged some technical issues here about the drafting. Now, I'm not an employment lawyer, so I will bow to those who are, but I just want to draw your attention to the reference in the ACTU's submission where they say in, I think, section 55(6) that it alleviates this potential double benefit issue. I wanted to press you on that and see whether you have further consideration of that double benefit question and whether or not you thought that it still was an issue or whether there was some drafting fix that you thought was required there.

Ms Lamb : I haven't actually had a chance to look at their specific drafting on 55(6). I imagine that their submissions would have gone in around the same time as ours. I'd probably like to take that on notice and give you our view after I finish this call or, alternatively, rely on our submissions that we have there, because I think we have made some suggested drafting changes to 55(6) paragraph 27. For us it's really just about making sure that we clear up any ambiguity around that double benefit.

Senator WATERS: Sure. I ask you to have a squiz at the ACTU submission. It's just on the very final page. They've obviously got a different interpretation of section 55 and its various subsections. Could you perhaps just have another look at their interpretation and let us know whether you still think your interpretation is the correct one and, in which case, whether those drafting changes are, in fact, still required. I'm sure the committee will take on board if it's a technical issue that needs fixing.

Ms Lamb : Okay.

Senator WATERS: That's it from me for the time being, Chair.

CHAIR: Great. Thank you very much for your time Ms Lamb.

Proceedings suspended from 10:01 to 10:29