Beyond domestic violence leave: What comes next for Australian employers?

Existing laws insufficiently capture the ongoing and coercive nature of much abusive behaviour in rela­tionships

Beyond domestic violence leave: What comes next for Australian employers?

There is an increasing call for Australian states and territories to consider introducing a specific offence of domestic violence centred on controlling and coercive behaviour. This is because existing laws insufficiently capture the ongoing and coercive nature of much abusive behaviour in rela­tionships.

The proposal is consistent with the definition of 'family and domestic violence' now included in Modern Awards, which as of 1 August 2018, provide for five days of unpaid domestic violence leave. Unlike many existing criminal law provisions on domestic violence in Australia which focus on physical harm, the Fair Work Commission's definition is "violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful."

While debate continues on this side of the Tasman about Australia falling behind New Zealand's new 10 days' paid domestic violence leave, passed to take effect from April 2019, there are actions beyond paid domestic violence leave that employers can take to support employees at risk.

This includes employers advocating for broader legislative change, in the criminal arena, similar to the stance many employers took in last year's marriage equality debate. For example, a new offence similar to Tasmanian laws on emotional and economic abuse and the UK's recent controlling or coercive behaviour offence (s 76 of the Serious Crime Act 2015 (UK)) could provide that a person (A) commits an offence if: (a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive, (b) at the time of the behaviour, A and B are in a domestic relationship, (c) the behaviour has a serious effect on B, and (d) A knows or ought to know that the behaviour will have a serious effect on B. "Controlling" or "coercive behaviour" could then be defined with non-exhaustive examples. Creating a new offence along these lines could better acknowledge the complex nature of domestic violence and assist employees and employers in recognising the various types of domestic violence.

Other actions immediately open to employers include:

· providing all employees with access to psychological support through Employee Assistance Programs

· directing employees to referral pathways such as safe steps, National Sexual Assault, Domestic Family Violence Counselling Service, Mensline, Lifeline, Kids Helpline, Relationships Australia, and Family Relationship Advice Line

· training HR and managers in appropriately responding to domestic violence and offering referral options

· offering flexibility with workplace processes to ensure employee safety (such as call diversion and additional security)

· implementing some recommendations from the Victorian Royal Commission into Domestic and Family Violence; and

· becoming an Accredited White Ribbon Workplace.

The new Domestic Violence – Victims' Protection Bill (NZ) give victims discretion and flexibility in terms of the process required to access leave and so addresses some, but not all, of the issues above. For example, employees will not be required to provide employers with evidence of domestic violence, such as police reports, court documents or medical notes. Further, employees facing domestic abuse will be able to apply for urgent short-term variations to their working arrangements, such as their hours of work, days of work and place of work.

It is anticipated that the issue of domestic violence and how employers deal with it will become an increasingly important issue in Australian workplaces.

Stephen Woodbury, Global Practice Head, Employment Partner, Ashurst

Madeleine Causbrook, Graduate

(This article is in part based on Madeleine Causbrook's research thesis which received the National Council of Women of NSW's Australia Day Award 2018).

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