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Education and Employment Legislation Committee

FARRELL, Mr John, Policy Lawyer, Law Council of Australia

MOLT, Dr Natasha, Director of Policy, Law Council of Australia

MOSES, Mr Arthur, SC, President-elect, Law Council of Australia

Evidence was taken via teleconference


CHAIR: Welcome. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Could you confirm that, please?

Dr Molt : Yes, it has.

Mr Moses : Yes, it has.

CHAIR: Great. Thank you all very much for appearing here today. I would like to invite you to make an opening statement and then we will ask you some questions.

Mr Moses : The Law Council would like to thank the committee for the opportunity to provide evidence to its inquiry into the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018. The bill seeks to amend the Fair Work Act to insert a new entitlement into the National Employment Standards of five days of unpaid family and domestic violence leave, in effect extending the now 10 minimum entitlements to 11 minimum entitlements. The Law Council support the initiatives in the bill as a critical step in the right direction to support the victims of family and domestic violence, although we have noted that, down the track, parliament may wish to consider whether to extend the period of leave and to consider paid leave as well in relation to this issue.

Family and domestic violence leave is a fundamental aspect of workplace support for victims. It may be required to allow a victim to effectively deal with a number of different issues. For example, complex family law matters can involve multiple hearings over a period of months, and there may be requirements for parties to attend appointments with court-appointed family consultants, police prosecutors and lawyers. In addition, there may be more time required for medical appointments, finding alternate accommodation, relocation, psychologist appointments and attending to children's issues—this is not an exhaustive list. It is often impractical or impossible to attend to such matters outside of the ordinary hours of work.

The Law Council's Justice Project highlighted the employment-related impact that experiences of family and domestic violence can have for victims. I should note that it concluded that family violence often involves victims, in effect, being hindered in their place of work, and, as a consequence, they may lose or leave their job. The 2011 National Domestic Violence and the Workplace Survey found that nearly half of the respondents who reported experiencing family violence said that the violence had affected their ability to turn up for work.

Research indicates that women who experience family violence have a more disrupted work history, are on lower personal incomes, have had to change jobs frequently and are more often employed in casual and part-time work, compared to women with no experience of violence. What this then perpetuates, of course, is a circle of disadvantage. The implications of this are serious for victims who may be suffering financial abuse and may feel that they are unable to take time off work in order to leave an abusive relationship out of fear of losing their job. Financial hardship can bind victims, often women, to these abusive relationships.

Whilst the Law Council commends the bill as an important step and thanks the parliament for intervening in this area, it does recommend that additional measures, including increasing the number of leave days and providing for paid leave, be considered in the future by the parliament. We've provided written submissions as to drafting considerations for the committee to consider, in what we think will better enhance the intent of the bill. We're very happy to answer any questions that you may have in relation to those matters.

CHAIR: Thank you very much for your time today. I don't know how much of today's proceedings you've had a chance to hear—I understand you're at a conference, so probably none at all. We had the issue raised of people being in a position of experiencing domestic violence but not necessarily crossing the threshold of being in a de facto relationship. Do you have any comment from a legal perspective as to that issue?

Mr Moses : From what I understand, this is a concern that has been raised in relation to section 106B(3) of the proposed bill. As I understand it, the Australian Chamber of Commerce and Industry has raised an issue; that what we're proposing in our submission in relation to section 106B(3) is a broader definition than what the modern award provisions relate to. Is that the query?


Mr Moses : I think the starting point is that the National Employment Standards of course, as I have noted, make up the minimum entitlements for employees in Australia so that, if parliament legislated this as in effect the 11th minimum standard, this would in effect be incorporated into awards because an award cannot provide for conditions that are less than what the parliament legislates by way of the National Employment Standards. We do not think that there would be any cause for concern about uncertainty in relation to the NES being amended in the way that we have described.

Our main concern is—and as lawyers we see this—that people may be living with another person who may not fall within the definition of 'immediate family' contained in section 12 of the Fair Work Act, which, as you have noted, is 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. What we're looking at really is to provide protection in a situation where, for instance, an aunt, uncle, niece or nephew is the individual perpetrating the domestic violence towards a person. We know in today's society, and especially amongst some members of society with extended families, that aunts, uncles, nieces or nephews commonly live in the same household as other family members. This is really about trying to in effect reflect I suppose modern family arrangements as to how these provisions may provide protection to individuals who are experiencing family violence.

The other matter we have a concern about is that the definitions appear to exclude those people who have experienced or are experiencing family violence perpetrated by a past intimate partner. I suppose in order to deal with this concern and to promote consistency, because as lawyers we always take the view that a definition in one act concerning a subject matter should really resemble what is in other Commonwealth law, the best one we have been able to find is section 4AB of the Family Law Act as it presently exists, which provides an extended definition of members of a family that would capture and deal with the concerns that we have. So that's really our justification for it. We don't accept that this would create confusion because, as we say, as a matter of law what the parliament determines here would reflect then what the modern awards would have to cater for by force of the act. That's our main point on that issue. I apologise if I've gone on a bit, but I just thought I should explain that.

CHAIR: Thank you very much. I note that you have made a number of technical and drafting suggestions in your submission. Thank you very much for those. I'm not going to go into that in detail. In terms of your overall position, the Fair Work Commission said it is going to review this family and domestic violence leave in mid-2020-21, including whether paid leave is appropriate. Do you think this is the appropriate response at this point?

Mr Moses : By the Fair Work Commission?


Mr Moses : In my respectful view, there is no reason why this could not be reviewed earlier, but, having said that and to be fair to the Fair Work Commission, which conducts these reviews that in effect relate to 123 modern industry and occupation awards, it may not be a sufficient amount of time if they were to bring that forward from 2020, which I understand is the proposal, in order for them to look at this. I think there is probably a reason why parliament needs to act in the way that I must commend parliament to do by coming forward with this legislative intervention. This will apply to all employees, irrespective of whether they're covered by an award or not.

Parliament is probably, on one view of it, able to move more swiftly to deal with these matters than the Fair Work Commission can because of, as I said, the 123 awards that they must examine. In these hearings—because I've been involved in this system in the past, in terms of these matters—they involve, sometimes, hundreds of days of evidence being taken with parties turning up and putting forward all sorts of positions in relation to matters. Sometimes it is difficult for the commission to move quickly. Whilst I understand that may be when they will next look at it, parliament is probably better placed, as representatives of the people, to deal with what are meant to be minimum standards in order to protect those who are the most vulnerable within our community.

CHAIR: All right. Senator Waters?

Senator WATERS: Thanks very much, Chair. Thanks for being with us here today on the phone. Mr Moses, that's a very interesting point that you just made and I couldn't agree more. I think that it's parliament's job to make these decisions. Just had an interesting exchange with the ACCI and the AIG—basically the employer umbrella group bodies—who seem to say that the parliament shouldn't do anything that was inconsistent with the Fair Work Commission. Well, that was as much of their reasoning as I could actually make out. It seems that you're taking a different view. Do you think it's appropriate that parliament makes its own decisions about whether or not the leave should be paid or not, or do you share the concerns of those bodies that think that we shouldn't go further than the Fair Work Commission has recommended?

Mr Moses : I think the fundamental point is that the Fair Work Commission is a creature of statute. It derives its powers from what parliament provides to it. What we do know from the Fair Work Act is that parliament legislated the National Employment Standards—that is, the 10 minimum employment standards that are to be provided to all employees. Those are matters such as maximum weekly hours and matters relating to annual leave and long service leave. This is no less important than any of those matters in relation to providing minimum standards and minimum protections for employees.

Regrettably, in this society, at this stage, women still are disadvantaged and still suffer from a substantial pay gap when it comes to their male colleagues. When we add into the mix that they—and we regrettably have to say this—more than any other members of society bear the brunt of domestic violence, it would be a tragedy if they were further disadvantaged by potentially losing their jobs or being unable to deal with a circuit-breaker situation to get out of a domestic violence situation by being able to take time off work to deal with. They are faced with either losing work or getting out of an abusive relationship. I would always want that person to make the choice of getting out of the abusive relationship and being protected in their employment. We have to step up, as a society, to ensure that we do that. This sends a message, through employers, to both those who would perpetrate such violence and those who are the victims that their employers will stand with those victims. This is a good initiative.

Senator WATERS: You've nicely encapsulated a lot of the arguments there that many other witnesses have shared with us today, particularly on that element of influencing cultural change by making that statement in a workplace that DV leave is appropriate and that employers will support their workers who are suffering from domestic violence. Thanks for that. One other point of contention that the Australian Industry Group and the Australian Chamber of Commerce and Industry just had was that they were saying—I don't want to verbal them, but I think they were saying this—they don't need paid DV leave because workers can already avail themselves of other mechanisms—for example, unfair dismissal provisions. Now, I note that in your submission—and in fact, I quoted parts of your submission to them—that you point out that women who are experiencing family violence are often on lower incomes and often have had to change jobs more frequently, and therefore are more often employed in casual and part-time work. Is it correct to then deduce from that that they would be less likely to be eligible for unfair dismissal projections, given the short tenure of their work?

Mr Moses : There are carve outs in relation to the ability of certain individuals to access the unfair dismissal regime. I think there's a more compelling response to that: why should a person who has been the subject of domestic violence have to fight to get their job back as a result of taking leave in order to deal with the aftermath of domestic violence? That is a nonsense, with all due respect. They would be put out of the workforce and be forced to commence proceedings in circumstances where legal aid does not cover these types of matters. They would have to file the proceedings and run with it. The response may come back from the employer that they were not legally entitled to the leave, so therefore the fact that they didn't turn up to work meant that there was nothing wrong with the employer releasing them.

We have to get real about this as a society. This is about providing the minimum standards. It's not an adequate response to say, 'If they get sacked for not turning up to work, then they can sue us for unfair dismissal.' Because what the commission will have to look at is: did their contract of employment entitle them to take this leave, and did the employer act contrary to minimum standards? If the answer to that is no, it will be a struggle for that person to be able to be reinstated back to their position, hence perpetuating the cycle of disadvantage and being punished for purely getting out of an abusive relationship. I don't think that's acceptable in 2018.

Senator WATERS: Well said. The other objection seems to be notions about cost and particularly the cost to smaller employers, in that they might have to foot the bill for two weeks of pay for an employee who is not there. You've cited, in your submission, studies of economic feasibility about the leave that actually show that the costs associated with offering leave are likely to be less than the costs incurred by having the loss of productivity and the turnover associated with domestic violence. On that cost-benefit analysis, I put to the employer groups that it might actually be cheaper for employers to simply pay the 10 days of leave. What's your view on that cost question and whether it not just is the right thing to do but might actually be financially sensible for smaller employers to pay the leave?

Mr Moses : Studies have shown that having a stable workforce actually does provide for a more productive organisation. I understand the concern raised by employers and, of course, we can't speak to the economic ramifications of what they may or may not be putting forward. But if I go through the list of each of the minimum National Employment Standards—whether it be public holidays, long service leave, annual leave or parental leave—all of those would be met with the same response, which is: 'This is a cost for our business by having people not there because they avail themselves of that leave.' But that's not the reason why we don't provide that as minimum labour conditions in a democracy such as ours. This leave is also just as equally important as personal carers' leave, compassionate leave or parental leave. This is about dealing with a vice within our society that we have yet to bring to heal. As a society, we all bear the brunt of having to deal with it through this way as well. That's just my response to it, on behalf of the Law Council of Australia. There is a cost, but there is always a cost in providing minimum entitlements to people in a liberal, representative democracy such as ours, in terms of their conditions.

CHAIR: Just to clarify, Mr Moses, the bill, as it currently stands, does allow people to take time off with no threat to their employment. That's the whole point.

Mr Moses : Correct. I think the point being raised by Senator Waters, in terms of ones of the concerns being raised, is that this will add—that is, for small employers—an additional cost to them, which will impact upon their business. I would—

CHAIR: They were talking about that in terms of 10 days of paid leave, yes.

Mr Moses : That's not what the bill is about, though.

CHAIR: No, it's not. Correct. I just wanted to clarify—

Senator WATERS: Sorry if I've been the source of any confusion there.

Mr Moses : To be clear, I'm speaking now, on the basis of this bill, about unpaid leave. I apologise to Senator Waters for misunderstanding the question, but I'm speaking to this bill.

As for paid leave, the Law Council's position is that it certainly supports that concept being examined by the parliament in the future as a further protection in respect of this area, and certainly in principle we support that. But we equally acknowledge: that is not on the table at the moment. When it does, as it were, come before parliament, then that will be something that we will certainly be examining and supporting.

Senator Brockman, to use the terminology of a women's association from your state about this bill, I think they basically said that, whilst it's not perfect and what they want, they certainly support the legislation to ensure that these minimum standards come into effect now, and other matters can be looked at when parliament is able to look at those matters. I think we share the same position. We say: 'Let's get this through the parliament now. Let's take this step. Once that's embodied in law, then let's look at extending it in the way that other groups have suggested.'

CHAIR: Great. Thanks. I think that was important to clarify. Go ahead, Senator Waters.

Senator WATERS: Can I just apologise for being the source of—

Mr Moses : I apologise again, Senator Waters, for misunderstanding your question.

Senator WATERS: No, no—I take responsibility for perhaps not being as clear as I'd hoped. I certainly am intending to move amendments to this bill to increase the leave entitlement to 10 days' paid leave, so I guess I've been asking witnesses today whether they think that's beneficial. But we've covered that nicely.

In the few minutes that we've got remaining to us, can I ask you to elaborate on the New Zealand 10 days' paid leave which has just been legislated? Can you also tell us a bit about the related amendment they've made to add domestic violence as a ground for discrimination? I'm interested in—if you can tell me—whether that's the case in any of our Australian jurisdictions, and whether you think it should be.

Mr Moses : On the first point, Senator, in terms of the New Zealand legislation: New Zealand has often been ahead of us in respect of entitlements. That legislation, as you correctly point out, does provide for up to 10 days' paid leave from work, separate from other leave entitlements. It also permits workers who are victims of domestic violence to request flexible working arrangements. As I said, they're often ahead of Australia when it comes to these matters. It certainly does provide a legislative guide and basis as to how Australian legislation could be amended to reflect paid leave entitlements in relation to persons wanting to take leave because of domestic violence. Again, that's a matter for parliament to consider upon receiving representations from various interest groups.

On the question of whether a victim of domestic violence can use that as a ground for discrimination in the event that they do not get, for instance, a promotion or are dismissed as a result of that—and I'll be guided by John Farrell and Dr Molt on this—I'm not aware of any current provisions of our discrimination legislation, state or federal, which cover this topic area. But what we'll do, Senator, to ensure that we don't mislead you, is: after I've asked Dr Molt and John Farrell to intervene and express their views, I'll make sure that we provide you with a briefing paper in respect of that, to ensure that you're properly briefed on that issue.

Senator WATERS: Thank you. I would be very grateful for that.

Mr Moses : Dr Molt, do you have anything to add in relation to that issue?

Dr Molt : Only that I'm unaware, under Australian law, whether there's such a provision.

Mr Moses : And John?

Mr Farrell : Yes, same as Dr Molt—I'm not aware of a position, but am happy to look into it.

Mr Moses : We'll research that for you, Senator, and provide you, through the chair, with a briefing paper on that.

Senator WATERS: Thank you. That would be fantastic.

CHAIR: Excellent!

Senator WATERS: I really appreciate your time and your submission.

CHAIR: Thank you all very much. We will leave it there.

Mr Moses : Senators, thank you for permitting us to appear before you, and also thank you for the indulgence on appearing by phone.

CHAIR: We appreciate the efforts, and we understand it's a challenge at times. Thank you very much.