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Education and Employment Legislation Committee

UEBERGANG, Ms Rachael, Co-Director, Northern Territory Working Women's Centre Inc.

Evidence was taken via vid e o conference

CHAIR: Welcome. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Is that correct?

Ms Uebergang : That's correct.

CHAIR: Great. Would you like to make a short opening statement? And then we'll ask you some questions.

Ms Uebergang : We welcome the government's move to include domestic and family violence leave in the Fair Work Act. We see this as an important step in terms of ensuring that there is universal coverage for a national system of paid leave. However, in our view, this is such a lost opportunity. This was our opportunity to demonstrate, with tangible practical action, that when women make the unbelievably difficult decision to leave an abusive relationship then we, the Australian community, have their back and will support them with paid leave. We know from the evidence—and this is reinforced by Working Women's Centre clients—that income security is one of the key contributing factors to a woman's ability to leave an abusive relationship. At the time that women need financial support—perhaps for some more than at any other time in their life, at the time of leaving an abusive relationship—with unpaid leave we're sending them the mixed message of, 'On one hand, you don't have to put up with abuse and you can leave an abusive relationship, but on the other hand we're going to dock your pay if you take time off work to organise that.'

We can do better than this. We have to do better than this. Two out of three women who experience domestic and family violence are in paid employment. Frontline domestic and family violence workers in New South Wales recently calculated the cost of leaving an abusive relationship at approximately $18,000. It's easy to see that for many women the financial risks associated with leaving an abusive relationship, including worry about how to feed, clothe and shelter children, result in a decision to stay in, not leave, the relationship. We should be doing everything in our power to support and enable women to make the decision to live free from violence and abuse when they are ready. I strongly urge the government to introduce 10 days of paid leave. It's our view that not introducing paid leave will result in more women being trapped in abusive relationships.

In terms of issues raised in the Working Women's Centre submission, I was pleased to establish, after the submission was submitted, that former spouses are indeed covered in the definition of 'immediate family', which enables employees to take the leave where they are managing impacts of family and domestic violence by a former partner, and we see this as central. However, we are concerned about the drafting of the bill insofar as it relies on, firstly, reading the entitlement at section 106B(2); secondly, checking the meaning of 'close relative' at section 106B(3); thirdly, checking the definition of 'immediate family' in the dictionary at section 12; and, finally, seeking out the definition of 'spouse', also in the dictionary at section 12. While it's absolutely fair to say that modern awards are less complicated documents compared with the Fair Work Act, the modern award clause contains a definition that is all in one place and relatively easy to read. I encourage the committee to find a way to simplify the bill so that the meaning of 'close relative' is more accessible.

Our fear is that, by not doing this, workplaces that take a quick look at the legislation will find that 'close relative' refers to immediate family, which includes a spouse, but makes no reference to former spouse. Given that the ABS personal safety survey of 2016 details that women are more likely to experience domestic and family violence by a former partner at a rate of approximately four times that of a current partner, that would be a really terrible result in terms of targeting the leave to where it is most needed.

My final point today is to agree with comments in the ACTU's submission under the heading 'Definition of "close relative"' and express my own concern that the legislation does not cover boyfriends, girlfriends, dates and current non-resident partners—in other words, non-cohabitating relationships. Non-cohabitating relationships are also excluded from the modern award provisions. Again by referring to the ABS personal safety survey of 2016 we see that family and domestic violence experienced by boyfriend, girlfriend or date occurs at a rate of 7.6 per cent, which is more than double the rate of violence perpetrated by current partners. So this is not at all an insignificant sized group of vulnerable people. Additionally, non-cohabitating partners are not an insignificant group and should be included in terms of access to the leave entitlement based on their shared experience of violence, coercion and control, not excluded from access to the leave entitlement because they live in a non-traditional domestic arrangement.

CHAIR: Great. Thank you very much. Do you think there's anything in particular in the context of rural and regional people, particularly women, and Northern Territorians that we as a committee need to consider?

Ms Uebergang : Yes, I do. Two things come to mind. One is the absolute lack of services. We're talking about a lack of services in terms of not only domestic violence counsellors but safe houses and even police. In those sorts of environments we need to think very carefully how we can support these people. The other thing in those communities is that people don't have access to a large labour market, so in many ways they have a job with one employer in that community and that's the only place that they can work. If they're not able to find a way to make that job work, they may find that they can't work at all in that community. We hear from our clients that, when something goes wrong with their employer, not only do they lose their job but they have to leave the community, which means relocating their family and all the associated costs and challenges.

CHAIR: Yes. My understanding is—and we have covered this and we're going to cover it with the department later—that former de facto partners are covered by the legislation. We will clarify that later on. In terms of considering this legislation, have you had any conversations with the employers you just mentioned—the small employers in regional communities where they might be the only employer? Have you had any conversations about their position on this bill? We heard earlier, particularly from the unions, that many large employers have some provisions for some paid domestic violence leave. Obviously the burden on smaller employers is different. Have you had any conversations with those smaller employers in communities?

Ms Uebergang : No, I haven't specifically about this bill. I should also be really clear that we are an advocacy organisation for employees.

CHAIR: Yes, absolutely.

Ms Uebergang : We do provide to managers and HR people in organisations a training package that is about helping them to respond to disclosures of domestic and family violence in their workplace and to manage what that means for their business. We are in that context talking regularly to HR and managers. Overwhelmingly what is coming through there is that they want to be able to support their employees, but they are just not really sure how. They need some skills. This is very different from approving sick leave or long service leave. We're taking workplaces into a very new context here, and I think it can be quite frightening and overwhelming. I'm sure you're aware there are very high rates of domestic and family violence in the Northern Territory, and they become even higher in rural and remote areas. This is something that employers are already dealing with and really want help on.

CHAIR: Thank you.

Senator WATERS: Thanks very much for your time today, Ms Uebergang. I'm glad you raised the issue of education and training for employers, because it's come up quite a lot today. Your sentiment that employers want to do more but often don't know what to do or how best to help their employees seems to be shared. If it's appropriate, would you be able to provide us a copy of the training package you said your centre gives to employers? Is that in a form where you could flick us a copy?

Ms Uebergang : I'd definitely be happy to provide you an outline of what we cover. Very briefly, it starts with some general introductions to the concepts of domestic and family violence, it moves into what that looks like in the workplace and what the impact of the workplace is, and then we do some development of skills in responding to disclosures and having a conversation around safety planning. Safety planning is a really big one.

I would add that I think this is an area where we're really going to need some help from our work health and safety regulators. We need our work health and safety regulators to help workplaces develop the policies and guidelines so that when a manager says, 'My person here at the front desk of the hotel reception is at risk from an abusive partner,' that manager can go to the work health and safety regulator and the work health and safety regulator will be equipped to provide the necessary information. In terms of support for employers, from our perspective that's a very big gap at this point in time.

Senator WATERS: We'll take this up with the department, but are you aware that there's any intention by government to formulate these sorts of guidelines, or will it fall to the community sector, organisations such as yours, to provide these guides for employers?

Ms Uebergang : As far as we're aware, it hasn't really been seen as part of the remit or responsibility of work health and safety regulators. As far as I'm aware, that's where we're at. Certainly if you were to go to the websites of the jurisdictions where there are Working Women's Centres you would find there's nothing, or very little, in terms of guidance on domestic and family violence.

Senator WATERS: We might take that up with the department later in the afternoon. You made the point that in regional and remote areas not only are the rates of DV higher but the access to services is even more constricted because, sadly, there are fewer services, and you mentioned a lack of safe houses. Does that imply that workers in regional and remote areas will need more time away from work, to get their affairs sorted and get themselves safe, because those services are so stretched and few and far between? Is five days in any way adequate in the context of regional and remote communities?

Ms Uebergang : That's a very good point. I think that, yes, people would need more time, and I think that there would be a greater uptake of the leave as well. The severity of violence is higher, the prevalence is higher and the services are lower, so all round it's a much more difficult context.

Senator WATERS: You mentioned employers are fewer, which gives employees less choice and therefore, if they're not able to have understanding workplaces and paid leave, it might mean their connection to the workplace is severed. Does that demonstrate that paid leave is more appropriate in situations where there are fewer employers in the community—if that makes sense?

Ms Uebergang : I think anything that supports people to stay in their employment and consider carefully their options in terms of being safe and maintaining financial independence is really important. I think of a very young woman I spoke to a number of years ago. She was very much impacted by domestic and family violence. She was a young Aboriginal woman. I'm guessing—I don't know; I'm not in her community—she was a shining light in her community. She left the community, she'd gone away and got herself a tertiary education, she'd gone back to the community and she was doing fantastically. But, because of the domestic and family violence, she lost her job. It was because of her difficulty to get to work. She lost it not after by any means excessive periods of leave or excessive periods of being late. Not only had she lost her job; it was her dream to get educated and to serve her community with that qualification. It meant that she had a choice. It was the end of working in that profession, because there was only one workplace where she could do that work in her community. It was either the end of her career, or she had to leave her land, her family and her community, which she didn't want to do. I'm not sure that that's the choice that we should be giving these young professional people who are from the community. I think we need to be doing everything to support them and keep them there.

Senator WATERS: Hear, hear. That point about the prevalence of predominantly women that have had to resign or have been sacked from their workplaces because of the impacts of violence on their ability to do their work has been raised a few times today. Do you have any sense of how frequently that happens and whether or not there's any protection from discrimination as a sufferer of domestic violence in any of our workplace laws?

Ms Uebergang : I can't give you numbers on how common it is, but what I can say anecdotally from our work here is that it's a lot more common than what we would like and probably than we think. Things like a woman being subjected to a violent assault over the weekend, her employer finding out on the following Monday and terminating her for bringing the organisation into disrepute? This is happening. It's unbelievable. It is happening. We know that, as I said, here at the Working Women's Centre in the Northern Territory. I can also vouch for our sister services in Queensland and South Australia.

At the moment, in the Northern Territory, if you qualify for unfair dismissal then you could probably take a claim for unfair dismissal. However, many people will not qualify for unfair dismissal and, in fact, people who experienced domestic and family violence are perhaps even less likely to qualify for unfair dismissal, because we know from the evidence base that they have shorter work histories and are more likely to move around in employment, be in casual arrangements and those sorts of things. If you don't qualify for unfair dismissal, in the Northern Territory, domestic and family violence is not an attribute in the Anti-Discrimination Act, so it is not grounds for discrimination complaint. I'd have to take on notice whether that's the case in all other jurisdictions, but I'm pretty sure that there are no jurisdictions where domestic and family violence has been inserted as an attribute.

Senator WATERS: Do you think that is something that should happen? I know it's not specific on this bill, but it's a related workplace issue about the intersection of domestic violence and the workplace. Is it something that we or I should look at further?

Ms Uebergang : Absolutely. That scenario that I outlined to you before of being assaulted on the weekend and terminated on Monday for bringing the organisation in disrepute surely is not acceptable in the Australian community. We need to protect against that from occurring.

Senator WATERS: Thank you. I'll look into that separately and try to progress that.

We talked a bit about definitions in your submission, and you've clarified that former spouses are covered, and I agree with that interpretation, but you've identified, as have some of the other witnesses, that non-de-facto partners aren't covered. I think there was an earlier submission that said the Family Law Acts takes a different definition. Correct me if I'm wrong. I think the submitter was saying that the Family Law Act does include non-habiting partnerships in their definition of 'family', which triggers other family provisions. Is that your understanding? Are you saying we should cover non-living-together partners in these new laws?

Ms Uebergang : I can't really comment on that. Family law is outside of my area.

Senator WATERS: Okay. I don't blame you; it's very complicated. It's outside of mine too. Perhaps we will look into that.

CHAIR: We've got the Law Council coming up.

Senator WATERS: Yes.

Ms Uebergang : The point for us is that partners who are not living together should be covered. I think just protecting people who live in traditional relationships shouldn't be the point here. I think the point should be protecting people from violence and supporting people experiencing violence irrespective of whether or not they live in a traditional arrangement. And many people have work issues. Many families are split for work, with part of the family living in one town and part of the family living in another town. I think those arrangements, with many others, should be protected.

Senator WATERS: I agree. I think you mentioned double the amount of violence by non-cohabiting partners than by current partners. There are some ABS stats there that are pretty scary.

Are you aware whether there are any organisations, companies or employers in the NT that are voluntarily providing paid family and domestic violence leave? Is there any difference between whether they are large and small? There's been some kind of distinction made about the capacity of employers to voluntarily step up. Can you shed any light or anecdotes on that?

Ms Uebergang : Yes. There's quite a mix of small and large employers who have taken up an enormous range of options, which might be from two or three days paid leave right through to the Northern Territory Public Service, which has an uncapped entitlement and everything in between.

Senator WATERS: Uncapped paid?

Ms Uebergang : That's right: uncapped paid.

Senator WATERS: Can you tell us more about that?

Ms Uebergang : That was an entitlement that introduced to the Northern Territory public sector in 2011. It was deemed then that the miscellaneous leave provision that already existed could be used for the purposes of domestic and family violence. Interestingly, it also included sexual violence outside of a domestic relationship, which is the first time that ever happened.

Senator WATERS: Have you got any figures or can you point us toward somewhere that might have the uptake and experience of how that's worked?

Ms Uebergang : I can provide you with some details if you like. The department probably have access to this too. It is possible to get details on enterprise agreements that have been approved in the Fair Work Commission and those that have a domestic and family violence clause and what the entitlements are. I haven't seen the figures for couple of years. Perhaps actually they are not available anymore, but they certainly used to be available.

Senator WATERS: I would be particularly interested in how many people have availed themselves of the uncapped paid leave provisions, because no doubt the argument will be that this is a burden on employers or some other such thing when, in fact, all of the evidence that we have seen so far is that actually the amount of uptake is so small that it's a drop in the ocean when it comes to cost and, in fact, often the other productivity and workplace gains by standing by your workers and supporting them mean that you don't have that absenteeism and you don't lose that corporate knowledge, because the staff member doesn't move. The evidence is that it's a cost-benefit thing to do. So I'm interested in whether the NT's uncapped provisions have borne out similar sorts of experiences.

Ms Uebergang : For the NT provision that only applies to the NT Public Service, the difficulty there is that the data they keep is about miscellaneous leave. They don't bracket down into what was miscellaneous and what was DV-related. We actually are not able to get the data there to scrutinise that, unfortunately. This raises other issues around the benefit of confidentiality that comes with all the miscellaneous leave against not being able to obtain the data to scrutinise it.

Senator WATERS: Yes. I think it was the National Australia Bank or one of the other big employers—I think it was NAB—that also provided uncapped paid leave. Yes, it is NAB according to one of the other submitters. So we'll ask similar questions of someone to come about whether that's working well or not. Is there anything else that you want to add about any other jurisdictions if you're across them? New Zealand's just brought in paid 10 days leave. Have you got any familiarity with comparative jurisdictions or even other countries where paid leave is working as opposed to unpaid leave?

Ms Uebergang : I don't, to be honest. I am not sure that any jurisdictions other than New Zealand have introduced paid leave. Interestingly, New Zealand advocates were inspired by Australia and Australian advocates. So it is somewhat disappointing for us in that we were pipped at the post.

Senator WATERS: Yes. We won't give up yet.

Ms Uebergang : I also understand that, as a result of that legislation being introduced in New Zealand, a directive has gone to their work health and safety regulators to introduce the materials necessary to support and educate employers. I think it is great that they have done that. I think we need a similar high-level motivator in Australia.

Senator WATERS: Can you talk about the confidentiality requirements of disclosure and how that works in practice with the employer needing to keep those details confidential. Is there any guidance for employers on how to do that at the same time as managing their obligations to other staff to keep the broader workplace safe?

Ms Uebergang : We see such a range of stories in terms of confidentiality. We see wonderful and stunning examples. At one end of the continuum we are seeing employers bending over backwards to protect confidentiality by being very careful not to take photocopies or scans of any documents. At the other end of the continuum we see the absolute opposite, where personal details are shared and gossiped and documents are emailed from email addresses that they should never be emailed from. I think that is a real problem.

Employers are going to need some help on this too, particularly when you think about how HR people work and untrained. They are trained to record everything; everything needs to be documented and recorded. I think in some ways we need to undo some of that training or provide different guidance. So what we are saying to HR and managers is: 'If you do need to sight evidence, that is fair enough. But don't take a copy. It is not necessary to take a copy. Record that you have sighted the evidence and that it has met the threshold to be satisfied, but don't keep a copy.' I think some of the normal online HR systems where personnel file information is recorded will need adjusting because of the large number of people that come into contact with that information. Again, this is where employers need help. I guess what we are saying to them is: 'Don't treat this just the same as all your other entitlements. This one needs to be handled a little bit differently.'

CHAIR: Thank you very much for your time today.

Ms Uebergang : Thank you very much for the opportunity.