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Education and Employment Legislation Committee
03/10/2018

MCCULLOUGH, Mr Stuart, Chief Executive Officer, Victorian Hospitals Industrial Association

MINTER, Ms Kate, Research Director, Unions NSW

OXLEY, Ms Tess, Delegate, Health Services Union

Evidence was taken via teleconference—

[11:17]

CHAIR: I welcome Mr Stuart McCullough from the Victorian Hospitals Industrial Association and representatives from Unions NSW. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Could you just confirm that please.

Mr McCullough : Yes, it has.

Ms Minter : Yes, it has.

Ms Oxley : Yes.

CHAIR: Thank you. Do you have any comments to make on the capacity in which you appear?

Ms Oxley : I'm a delegate of the Health Services Union and a paramedic.

CHAIR: Thank you all for being with us today. I invite you to make an opening statement, and then we'll ask you some questions. Who wants to put their hand up to start?

Mr McCullough : I'm happy to volunteer. Thank you to the committee. VHIA is a registered organisation of employers, and our members are public health services and standalone community health services in Victoria. As providers of health services, our members provide health care to the Victorian community, including those who experience family violence. As members of the same community, health workers also experience family violence. VHIA are not experts on the subject of family violence but we do have members who are. In Victoria, there has been the Strengthening Hospital Responses to Family Violence project, led by the Royal Women's Hospital along with Bendigo Health, and there are now a number of health services, such as Benalla Health, that have achieved White Ribbon accreditation. The submission that we've made to the committee recounts our own experience in terms of the introduction of family violence provisions to enterprise agreements, starting from 2016.

From the outset I wish to say that we welcome the introduction of family violence leave as part of the National Employment Standards, and I recognise that the bill reflects the decision of the Fair Work Commission with respect to four-yearly review of modern awards. However, regarding that decision, I'm mindful that the commission was required to make its decision in accordance with the modern award's objective, detailed at section 134 of the act. To the extent that the modern award's objective may act as a limiter, that limitation does not apply to the federal parliament. I recognise that family violence leave as an unpaid leave entitlement as proposed in the bill provides protections with respect to employment. However, unpaid leave results in an economic detriment and it is conceivable that the economic impact may affect the use of the leave. It is our view that a paid leave entitlement should be preferred.

In our submission we've highlighted what we refer to as a gap in the current legislative framework, and that gap arises from the current entitlement to personal carers leave. Specifically, the NES entitlement to personal carers leave permits the use of paid leave to provide care or support to a member of the employee's immediate family or household who requires care or support because of an unexpected emergency. As we've stated in our submission, some of the circumstances arising from family violence will be unexpected emergencies, resulting in a situation where an employee may use paid leave for an unexpected emergency arising from family violence that affects someone else but not the employee themselves. That is the gap that we've described.

Our experience, having introduced a paid leave entitlement progressively over the past couple of years, is the same as that described in the majority decision of the Fair Work Commission—that is, it has not resulted in either a large number of applications or a large amount of leave being taken. That observation at this time is anecdotal and the use of leave has not yet been measured in a formal way. Whilst paid leave is our preference—and we've put a submission in the alternative, requesting that thought be given to how unpaid leave might interact with paid leave—as we've stated, it is common for paid and unpaid leave to be used concurrently in some circumstances. We've given an example with respect to annual leave, which currently operates on the basis of it being taken at a time that is mutually agreed save that the employer must not unreasonably refuse to agree. If the leave is to be unpaid, the interaction between paid and unpaid leave should be considered further. Our comments with regard to the definition of family and domestic violence in close relatives really go to taking a more expansive approach. New forms of leave are not introduced that often, particularly as the national standard, and this will be new territory for some employers. Our suggestion, when it comes to defining key terms, is to err on the side of being informative.

I want to address the confidentiality part of our submission a little bit more. The confidentiality provisions that are proposed go to the issue of the employer keeping information that is given to it confidential. The things that we've had to consider in implementing a family violence provision in agreements is what confidentiality means and where the risks to confidentiality lie. The two examples in our submission were rosters and pay slips, but you could add to that list things such as time sheets. We wanted to avoid the circumstance where the fact that someone is on family violence leave is published on a roster or a time sheet or communicated broadly to other employees as being the reason for the absence. With respect to pay slips, regulation 3.46 does not require the publication of leave expressly but does require identification of the rate of pay and ordinary hours. In the context of paid leave, a difference between the ordinary-hours rate of pay and gross pay would result. In the context of family violence, one of the matters we were advised of is the risk that pay slips may be a means by which confidentiality is breached, especially if intercepted by a family member.

We found that matters around confidentiality have required information and support and we have raised that in our submission as a matter for the committee's attention. Thank you to the committee for the opportunity, and I'd be happy to take questions at a time the committee sees fit.

CHAIR: Thank you very much. Ms Minter, or Ms Oxley?

Ms Minter : I'll start and will then hand over to Tess. Thank you for the opportunity to appear before the committee today. The Unions New South Wales submission to this inquiry has focused on the urgent need for 10 days paid domestic violence leave in the National Employment Standards. We acknowledge that the federal parliament is taking an important step in acknowledging that domestic violence is a workplace issue and that workplaces can play a positive role in ending violence. But this bill does not adequately acknowledge the costs associated with living with and leaving violence, nor the importance of financial independence for women and families experiencing violence, which is why we need 10 days paid domestic violence leave.

Australia today has been a world leader on paid domestic violence leave. The Australian union movement has been campaigning for a decade to have leave provisions included in enterprise agreements, and we have seen the positive impact that this has had on workplaces and women experiencing violence. Australia needs to continue to be a world leader in this space and ensure that all workers have access to paid leave. Our submission to the inquiry has relied on the evidence of New South Wales union members. There is a broad and supportive network of service providers and workers who provide assistance to women and families experiencing violence. They see firsthand the steps that women take when leaving and living with violence, but they also see women not engaging with services because of the fear that they will miss out on work and the effect that that will have on their employment. To illustrate this point, I would like to provide the committee with some insight from a New South Wales Police Association member on the role that police play in supporting women experiencing violence, and the importance of leave.

The fear of losing their employment is a major barrier for many women needing assistance from police. Police inform victims at the time that they are taking a statement that they may be required to give evidence at court. This can go over a few days if it is adjourned. If the victim is put off by the prospect of missing work to attend court or find housing, it can be the deciding factor in whether or not the victim wishes to give evidence at court. Police can put practical measures in place that will protect victims from the offender and the body that gathers the evidence and puts it before the court. So, in terms of protection from further abuse, police are vital. It is vital, however, that there are necessary supports in place so that measures taken by the police can work and the victim will be protected.

The Unions New South Wales' submission emphasises that paid leave is important in providing women the options they need to leave violence. It comes at a minimal cost to employers. Research has shown it will cost five cents per worker per day, compared to the $12.6 billion domestic violence is estimated to cost the economy. We urge the committee to recommend the immediate introduction of 10 days paid domestic violence leave in the National Employment Standards, because it will save lives. I'm now going to pass over to Tess, who will speak about her experience as a paramedic, and why paid leave is important.

Ms Oxley : I've worked as a paramedic for almost nine years and I'm a Health Services Union delegate. I've practised in remote, regional and metropolitan New South Wales and I'm currently based in the south-west of Sydney. In my role as a paramedic I see daily the devastating effects of domestic violence. I'm often the first kind face that women and children will see after they've been abused. How I'm able to support them, the reassurance I can provide them and the options available will often determine their immediate decision pathways. Providing options that can give these women back their sense of worth and empowerment can drastically change the direction of their future. Paid leave of 10 days would mean we could discuss more than just a bandaid approach to what they have experienced. We could give hope that they could have housing options other than staying with their abusers, or emergency housing in a hotel that charges by the hour. We could offer psychological support other than a 10-minute chat in a busy hospital corridor or a follow-up phone call that may or may not occur. When I respond to these jobs I have a duty of care to those involved. Ten days paid domestic violence to take back control of their lives is the least I feel like I can offer them.

CHAIR: Mr McCullough, I'm interested in the point you made about the interaction between personal leave and this entitlement. My understanding is that, apart from the basic requirement for showing some medical evidence, personal leave would be accessible in these circumstances. Do you not agree with that?

Mr McCullough : An event that arises from family violence can be a number of different kinds of things. There are circumstances, for instance where injury or medical treatment are involved, where there is no doubt that personal leave can be accessed. But both within the bill and generally speaking the events that family violence leave are intended to address include things such as engaging with legal advice, police support and court appearances, and those things presently are not actively contemplated under the personal leave components for the individual employee. An employee is entitled to utilise personal carer's leave for personal illness. They can utilise carer's leave for the illness of an immediate family member or household member, or to deal with an unexpected emergency. It is that addition of unexpected emergency for someone else where you get that misalignment, effectively, between and what they can do for someone else and what they can do for themselves.

CHAIR: Has that ever been tested?

Mr McCullough : I'm not aware whether it's been tested as such. From our perspective, I guess that the challenge with that is who wants to be in a position where they are required to seek to test the scope, the existing provision, under the NES in order to make a decision with regard to court access, counselling, police support, or any of the other events that are connected directly to family violence events.

CHAIR: In general you support this bill providing a consistent minimum standard across employment frameworks in Australia?

Mr McCullough : I agree that there is use. I think the submission that Kate made was to the effect of it being a good first step forward. I think that's a fair description. From our perspective there is still a gap in terms of paid leave.

CHAIR: On to Unions New South Wales. Ms Minter, The Fair Work Commission was established under the previous Labor government. It was established with the support of the union movement as an independent agency. My understanding is that in order to get to this point it went through a very extensive consultation process. Were you involved in that consultation process?

Ms Minter : No, I was not personally.

CHAIR: But Unions NSW would have been?

Ms Minter : I understand it was before I was working for the organisation. I can get some further information on that, but I understand they were, yes.

CHAIR: Can you just talk us through why you think the decision should be overridden, and why we shouldn't take the decision of the commission until the review point in 2021?

Ms Minter : I refer back to the evidence that was given by the ACTU earlier this morning, who were quite involved in leading that case on behalf of the union movement through the commission and the limitations around the necessity tests there. It's not overriding. The National Employment Standard sits alone as a blanket set of minimum standards and it always has sat separately under the Fair Work Act to what is provided through awards. This is providing a blanket entitlement that is available to all employees as a minimum standard that can't be bargained away. So I don't think that it would override a decision through the award modernisation process. Parliament hasn't got the same limitations that the Fair Work Commission does in making these decisions and putting the National Employment Standards is not inconsistent with introducing a new form of paid leave.

CHAIR: Do you know what percentage of your members would have access to domestic violence leave over and above this minimum standard at the moment?

Ms Minter : Not as a percentage, as an exact figure, no. We know of a number of large organisations currently who provide it, and we can provide the committee with some details on that. But in terms of a broad based figure of the percentage of members covered, no, we don't have that information, unfortunately.

CHAIR: Fair enough.

Senator WATERS: Thanks everyone for participating today. I will start with Mr McCullough. Your submission notes that, in fact, your organisation provides paid leave of up to 20 days a year.

Mr McCullough : That's correct.

Senator WATERS: How common is that? What has been your experience so far of how well that has been received?

Mr McCullough : That provision that we have is being introduced into all the agreements that apply to our membership, in terms of the public hospital sector. That's throughout Victoria. In terms of the utilisation, I made a comment in my opening address that our experience to date is very much in line with the experience that was described in that Fair Work Commission decision in the majority decision. That is, the fact that it's available, in our experience, hasn't resulted—I think the words in the decision talked about an opening of the floodgates—in a large number of applications or a large number of days being taken; but it has been used on a selective basis and on a needs basis, as yet, to date.

Senator WATERS: Can you tell us about your awareness of any other organisations—whether they be public or private—that provide paid leave, particularly ones that provide more than 10 days of paid leave?

Mr McCullough : As I understand it, the provisions with regard to paid leave for family violence—certainly, from the Victorian perspective—originated in local councils. I understand the kind of provision that we have now for Victorian public hospitals and community health is similar, at least in spirit, to clauses that were developed through the local council EBAs, as such. I would say that it is something that has developed even over the last two years. You will have noted that in our submission we made the point that it was an item that we included in our log of claims. That is, it was not something that we simply received a log of from unions, although unions did make a claim for paid family violence leave. We also made that claim on the basis of our sense that it was the entitlement for which the time had come to engage with that entitlement and include it in agreements.

Senator WATERS: What's your sense about whether other employer organisations feel similarly to yours in relation to providing paid leave, particularly for more than 10 days?

Mr McCullough : I can't speak for other employer organisations. I do note the submissions that were made to the Fair Work Commission and, in particular, the submission to the Fair Work Commission that was really to the effect that it was not a matter for the commission but a matter for the parliament. I think that probably reaches back a little bit to the questions of Senator Brockman, in the sense that the Fair Work Commission was acting under a limitation imposed by section 134. Certainly, at the very least, there was a submission put that it was a matter for the parliament to give consideration to.

Senator WATERS: I also note that you give paid leave for full-time and part-time employees—pro rata, obviously, for part-timers—and that you provide leave without pay for casual employees.

Mr McCullough : That's correct.

Senator WATERS: That's obviously a lot more favourable than what this current bill is proposing. Can you talk to us about the distinction that you make there and why you thought that was a bare minimum, even for casual employees?

Mr McCullough : In terms of the reasons for providing unpaid leave to casuals?

Senator WATERS: Yes.

Mr McCullough : By having a paid leave and unpaid leave distinction, it is similar to a lot of leave distinctions between permanent status and full-time, part-time and casual employees. In that sense, for us, it was the application of an existing industrial principle, with regard to paid leave. But as part of that opening submission, it was making the point that what the bill does is it does address that issue of security of employment, which is always an issue for casuals in any event. There are existing provisions around the security of employment for casuals in the space of unpaid leave for personal carer's leave. What we have done, with regard to the family violence leave, is broadly consistent with those existing principles.

Senator WATERS: Do you think this bill should be strengthened to provide paid leave?

Mr McCullough : Yes, that is our submission.

Senator WATERS: Thank you. I might move now to Unions NSW and the HSU. In your submission, you have listed out a number of large employer organisations and some small ones that provide paid leave. Can you take us through whether this is now a growing trend for paid leave to be voluntarily provided by employers and what you think the resistance might be to simply ensuring that employees everywhere can access paid leave?

Ms Minter : It has certainly become a greater focus within the union movement to put it on a log of claims and put it on the bargaining table during bargaining, and there has been greater movement towards those claims being accepted during bargaining. There is a greater standard or expectation that that is what an employer of choice looks like for women. But it's also been off the back of union members acknowledging that this is an important issue that they want in place for their work colleagues as well. In talking to workers who provide support to women living with violence, the fact of the matter is that there are a lot of women living with violence who don't have workplaces with a strong union presence or enterprise agreements, so it's falling short in terms of providing those protections for women who don't have those options. That's particularly for those women in precarious forms of employment, like casual work. They just don't have the bargaining power, either in their workplaces or individually, to provide those protections through enterprise agreements. It has been hugely important and we've seen the impact it's had on those workplaces, but what we need is something that is universal and that acknowledges that not everyone has that bargaining power. This isn't something that should be dependent on that.

Senator WATERS: If I can go to you, Ms Oxley, you gave a pretty powerful testimony there of how you want to be able to help people and assure them they are going to be fine, but you can't then say, 'At least you have got two weeks of paid leave where you can sort all of these logistical issues out.' How common is that experience? Can you tell us about the real impacts that you think it might have if employees were able to have paid family and domestic violence leave?

Ms Oxley : When I said that I respond to these jobs daily, I'm not overexaggerating. We go to these women every single shift that we work. They often are in a lower job compared to their partners, and that financial security is a massive decision-maker in whether they seek further care from us for them and for their children. I think if we can say to them, 'Your job is going to be secure and, therefore, you are still going to have petrol money to buy your kids to school; you are still going to be able to buy them breakfast, lunch and dinner for the next couple of weeks; and you can stay somewhere that's safe.' It is definitely going to encourage them to take the next step to looking after themselves.

Senator WATERS: Would you say that not having paid leave is keeping women in unsafe situations?

Ms Oxley : Definitely. When you're worried that you're going to lose your job and your job is the only thing that's going to keep you and your children safe, even that's going to be a struggle without that second income from your partner. If you're worried that you're going to lose that or if you're worried that you're going to get less shifts because you have let your boss down, a lot of them won't take it and they won't proceed further because, in their eyes, being able to feed their children is more important than the abuse that they are receiving at the hands of their partners.

Senator WATERS: A number of folk have raised today that, predominantly, women feel that they either have to resign or, indeed, are fired as a result of the impact of the violence on them and their working ability. Do you know roughly what proportion? Perhaps this is for you, Ms Minter: do we know what proportion of employees are sacked or forced to resign on the basis of the violence they are experiencing?

Ms Minter : No, we don't have the figures. They would be hard to come across. When women are getting sacked because of domestic violence, it might not be so clear-cut that that's why. Often it comes out as a performance management issue of having to miss work or taking too much unpaid leave, so the connection isn't even drawn to the fact that it is because of violence. This is a really important step that we take with acknowledging that leave needs to be paid. It is not just the access to leave that women can then have but the cultural shifts we start to see in workplaces, where it's acknowledged as something where, 'Hey, this is important. Hey, your workplace has your back, and it's okay to speak out and disclose.'

From our experience, we know that women will take all the different types of leave that they can currently access before they disclose violence, because they don't know what the repercussions of that disclosure are. Unfortunately, we don't have those figures in terms of the true impact that domestic violence is having on workplaces, and I think they'd be very hard to come across. But, anecdotally, members who provide support services have talked about the devastating impacts that being sacked or reprimanded, because a woman is experiencing violence, has had on them.

Senator WATERS: It sounds like you think that there would be increased disclosure if women employees' workplaces acknowledged that this was a real issue. Moreover, they would then be able to access some leave provisions. How important do you think encouragement of disclosure is in bringing domestic violence out of the shadows and in helping to make those cultural changes we need to ultimately eradicate it in society?

Ms Minter : I think it would be huge. Disclosure will always be difficult, particularly in a workplace setting. Those first steps of disclosure—and we spoke to it in our submission—are so important in women being able to seek additional help; so acknowledging that what they have experienced is violence and then being able to seek support services, whether that is through Tess as a paramedic or teachers in schools—we even spoke to finance workers at the bank—and being able to provide some kind of support or evidence there. Disclosure, regardless of where it is, is so important because it's the first step towards seeking further help. If we can provide one more safe place where a woman feels she can disclose violence, then that's another pathway she has to getting better assistance and to seek to leave that violence.

Senator WATERS: A number of other witnesses have referenced a rehabilitative effect in the existence of paid leave, namely that it would send a message to other employees in the organisation that violence is not on. Do you agree that there would be some kind of beneficial cultural or behavioural change message sent to all employees in a workplace, including those who might be perpetrators, by acknowledging that domestic violence paid leave is, and should be, an entitlement? Does that make sense?

Ms Minter : Yes, it does. And yes, absolutely. We can't underestimate the message that these changes send in workplaces. To have our federal parliament support this and introduce a universal right would go to show the seriousness with which we take violence and the support we are willing to show women. The fact that one woman a week is dying at the hands of their partner shows that there is an immediate need to take some drastic action, and paid leave is one way that the government can show that they support this and that that's what they can do.

Senator WATERS: Thank you.

CHAIR: I just want to clarify—and I quickly looked it up—that the bill does cover, in full, part-time and casual employees. I just wanted to clarify that because, in that exchange you had earlier, it might have seemed like it didn't.

Senator WATERS: Thank you.

CHAIR: We will clarify that with the department later as well, just to make sure that that is the case, but that is my understanding. Thank you all very much for appearing today.