Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697637519533.pdf (Australia)
Unions NSW Submission Inquiry into family, domestic and sexual violence 24 July 2020 Unions NSW Trades Hall Level 3, 4 Goulburn Street Sydney T: 02 9881 5999 F: 02 9261 3505 1 Inquiry into family, domestic and sexual violenceSubmission 76 Introduction Introduction Introduction Introduction 1.

Unions NSW is the peak body for trade unions and union members in New South Wales with 48 affiliated trade unions and Trades and Labour Councils, representing approximately 600,000 workers across New South Wales.
Affiliated trade unions cover the spectrum of the workforce in both the public and private sectors.

2.

Unions NSW welcomes the opportunity to make a submission in relation to this important inquiry into family, domestic and sexual violence.

A number of NSW unions have also made separate submissions, which we endorse.

Unions NSW also endorses the submission of the Australian Council of Trade Unions.

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3.

Unions NSW and its affiliated unions have a proud history of engaging in the parliamentary process to protect and represent the interests of union members.

Unions NSW frequently makes submissions to inquiries involving industrial relations and other issues which may impact members.

Family, domestic and sexual violence is one such issue, and one with which this organisation has a deep and ongoing engagement, including research and campaign work.

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Attached for the Committee’s information are two previous submissions prepared by Unions NSW regarding family and domestic violence, and sexual violence and sexual harassment in the workplace which are: • Annexure A submission to the Senate Inquiry into the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018; and • Annexure B submission to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the Australian Human Rights Commission.
2 Inquiry into family, domestic and sexual violenceSubmission 76 Summary of Recommendations Summary of Recommendations Summary of Recommendations Summary of Recommendations 5.
Unions NSW makes the following recommendations to the Committee: a) Inclusion of 10 days paid domestic violence leave in the National Employment Standards; b) Paid domestic violence leave should be made available to all workers in Australia by giving effect to the ILO Convention on Violence and Harassment 2019 (C.190) and its accompanying Recommendation (No.
206); c) the ILO Convention on Violence and Harassment 2019 (C.190) should be urgently ratified by Australia to ensure we are able to respond adequately to family, domestic and sexual violence in a nationally consistent way; d) Work Health and Safety laws should be amended to explicitly include workplace violence and harassment as a health and safety risk which employers have an obligation to prevent and manage and Regulators a requirement to enforce.
This should be supported with specific Regulations and Codes of Practice which provide clear guidance to employers on how to meet their obligations; e) All recommendations of the Respect@Work Report published by the Australian Human Rights Commission in March 2020 should be implemented; and f) The next National Plan to Reduce Violence against Women and their Children should include sexual violence and sexual harassment at work as a key area for action and investment.
iolence Domestic and Family VVVViolence Domestic and Family iolence iolence Domestic and Family Domestic and Family Introduction Introduction Introduction Introduction 6.

Domestic violence is the leading cause of death, disability and illness among women aged 15-44 years of age,1 higher than either blood pressure or smoking.

7.

A large number of women who experience violence are in the workforce.
The Australia Bureau of Statistics estimates more than 800,000 women workers experience some form of violence in their home.2 8.

The NSW and Australian union movement has been campaigning for the introduction of paid domestic violence leave for 10 years.

Many unions and their members, especially in the health and community sectors, provide direct support and assistance to families living with domestic violence.
1 Victoria Health, 2018, https://www.vichealth.vic.gov.au/our-work/preventing-violence-against-women 2 Australian Bureau of Statistics, Personal Safety Survey (2016).

3 Inquiry into family, domestic and sexual violenceSubmission 76 The need for paid domestic violence leave The need for paid domestic violence leave The need for paid domestic violence leave The need for paid domestic violence leave 9.
The Unions NSW submission to the Senate Inquiry into the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Annexure A) contains interviews with union members who work with women and families living with violence.

The workers stories outlined in our submission provide a snapshot of the impact of violence and the urgent need for a universal entitlement for ten days paid domestic violence leave.

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Maintaining economic independence through employment is crucial for women trying to leave violence.

Paid domestic violence leave provides women with the time, financial support and maintenance of job security required to enable them to leave violence.
Paid domestic violence leave enables women to access leave without the threat of being disciplined due to taking time off work to seek counselling, medical treatment, develop a plan to leave, find and move to safe accommodation, access Centrelink, receive legal advice, attend court hearings, provide evidence to the police, put safety plans into place in their children’s school, update their financial arrangements, change locks and telephone numbers, and access other support and services.

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Our affiliates who cover workers in this area advise many women who have experienced violence have also exhausted all of their available leave entitlements, and are then faced with the invidious choice of whether to turn up to work to keep their job, or turn up to crucial appointments to ensure their safety and support them to leave violence.
Tragically, this means many women are forced to remain with, or return to violent perpetrators because they cannot afford to live and have no income, due to losing their jobs or having no paid leave available.

12.

A universal provision of a minimum of ten days paid domestic violence leave is necessary to ensure workers escaping family violence are not placed at a financial or employment disadvantage.
to domestic violence leave are insufficient entitlementssss to domestic violence leave are insufficient urrent entitlement CCCCurrent to domestic violence leave are insufficient to domestic violence leave are insufficient entitlement entitlement urrent urrent 13.
Currently, the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act) contain an entitlement to 5 days of unpaid family and domestic violence leave in a 12 month period.3 Whilst this was a positive step, the unpaid entitlement is, for the reasons outlined above, inadequate to provide the support women require when leaving violence.

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An increasing number of employers have recognised the importance of providing some form of support to workers experiencing family and domestic violence, with 88.3% of employers 3 S106A Fair Work Act 2009 (Cth).

4 Inquiry into family, domestic and sexual violenceSubmission 76 offering domestic violence support mechanisms.4 For example, 75.6% provide access to unpaid leave, and 66.9% provide confidentiality of disclosure.
However, only 30.3% provide paid leave,5 including a number of large employers such as Telstra, The National Australia Bank, Qantas, Westpac, Virgin Australia, Sydney Water and Sydney Trains.

15.

The access to paid domestic violence leave in the national workplace relations system (ie those workers covered by the FW Act) is not consistent or guaranteed, and is entirely dependent on the employer.
For workers outside of the national workplace relations system, there is also no guaranteed access to paid domestic violence leave.

16.

NSW government and public sector workers, who are not covered by the national workplace relations system, were provided 10 days paid domestic violence by way of Premier’s Memorandum, M2018-03-Support for Employees Experiencing Domestic and Family Violence, which came into effect on 21 December 2018.

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However, to date the NSW Government has not agreed to to include this entitlement into all NSW government sector awards which has led to an inconsistent application of the entitlement across NSW departments and agencies.

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Unions NSW continues to advocate for the inclusion of the entitlement in industrial instruments to ensure that all government and public sector employees are able to easily identify their entitlements to paid domestic violence leave, any inconsistency with the application of the entitlement is removed, and the entitlement is enforceable and universally applicable across different NSW government departments and agencies.

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19.

Prior to the introduction of the Memorandum, NSW public service employees were entitled to take five days special leave per calendar year, but only after other leave entitlements had been exhausted.

There are numerous awards where this outdated entitlement still operates.

The retention of older provisions in awards is confusing and it is unclear whether the outdated award entitlements could override the new entitlement included in the Premier’s Memorandum.

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20.

Some NSW public and government sector employees have no entitlement to paid domestic violence leave in their awards at all.

The Premier’s Memorandum applies to all public service employees but is not binding on public sector agencies.

Therefore, some public sector agencies provide the entitlement by way of a policy directive.
However, not all public sector agencies have the entitlement included in another instrument which extends paid leave to them which 4 https://www.wgea.gov.au/sites/default/files/documents/2018-19-Gender-Equality-Scorecard.pdf at p 8.

5 https://www.wgea.gov.au/sites/default/files/documents/2018-19-Gender-Equality-Scorecard.pdf at p 8.

5 Inquiry into family, domestic and sexual violenceSubmission 76 means access to leave is left to the discretion of individual departments.
For example, Fire and Rescue NSW, a public sector agency, was until recently unaware of the entitlement as it was not included in the relevant Awards or any other instrument or policy directive.

FRNSW employees had no information available to them about the entitlement.

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Unions NSW is only aware of 5 NSW government sector awards which contain the correct entitlement to 10 days paid domestic violence leave.

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22.

The current approach to paid domestic violence leave entitlements in the NSW government sector is inconsistent and confusing.

Our affiliates have numerous examples of members and managers not being aware of, or being confused about the entitlement, including its availability, quantum and how to access it.

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23.

The failure to include the provisions for paid domestic violence leave in industrial agreements is causing confusion and additional anxiety to workers seeking to make use of the entitlement set out in the NSW Premier’s memorandum.

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Access to paid domestic violence leave differs markedly between governments and businesses across Australia.

Unions NSW urges the Committee to recommend a nationally consistent response to the provision of domestic violence leave, by including it in the NES.
Sexual Violence and Harassment at Work Sexual Violence and Harassment at Work Sexual Violence and Harassment at Work Sexual Violence and Harassment at Work 25.

Despite Australia having legislation making sexual harassment unlawful for over 30 years, its prevalence has not reduced over this time6 and it remains a widespread and commonplace problem with one in three people (33%) having experienced sexual harassment at work in the last five years.7 26.
Data collected by the ABS indicates that one in two women and one in four men will be sexually harassed in their lifetime.8 A survey conducted by the Australian Human Rights Commission (AHRC) in 2018 found that 72.0% of Australians have been victims of sexual harassment at some point in their lives (including 85.0% of women and 57.0% of men).9 This was a significant increase from 2012, where 21.0% of people said they had been sexually harassed.
6 Good L, and Cooper R (2016) 'But It's Your Job To Be Friendly': Employees Coping With and Contesting Sexual Harassment from Customers in the Service Sector, Gender, Work and Organization, 23 (5), 447-469.

7 Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018).

8 Australian Bureau of Statistics, Personal Safety Survey (2016).
9 Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018).

6 Inquiry into family, domestic and sexual violenceSubmission 76 27.

Despite this being an issue which affects a majority of Australians, only 17.0% of people make a formal complaint, and only 18.0% seek support or advice in any form, which is a decrease since 2012.

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28.

The decrease can be attributed to a majority of people having a negative experience after making a complaint.
Of those who did report sexual harassment, 43.0% said their complaint had a negative impact on them, and 45.0% said nothing changed subsequent to the complaint being lodged.10 These results are consistent with surveys conducted by the ACTU and individual unions, including Hospo Voice, Media Entertainment & Arts Alliance, New South Wales Nurses and Midwives’ Association, Australian Salaried Medical Officers’ Federation, and the Transport Workers Union.11 29.
The current framework dealing with sexual harassment is outdated and failing to protect people from violence and harassment at work.

30.

Key issues with the current legal framework include: • Anti-discrimination law is based on an individualised complaints process which relies on people who have been subject to sexual harassment to make complaints.

This places all the responsibility onto individuals to make a complaint and no obligation on the employer to take preventative action.
In addition, there is no ability for anti- discrimination bodies to act as regulators or to enforce the law.

• Whilst there is undoubtedly a duty of care under WHS laws to prevent and manage the risk of violence and harassment in the workplace, because WHS laws do not explicitly include reference to these types of risk, and there are no relevant regulations or codes of practice, this duty of care is not currently being utilised or enforced.
• There is currently no right of action under the Fair Work Act and this results in a lack of options for urgent intervention that would have the potential to stop the conduct at an early stage, resolve the issue, and preserve a worker’s job security.

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31.

The Unions NSW Submission to the National Inquiry into Sexual Harassment in Australian Workplaces (Annexure B) outlines a number of proposed solutions including: 10 Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018).
11 ACTU, ‘Sexual Harassment in Australian Workplaces: Survey results’ (Report 2018); United Voice Victoria survey, 2017; Sexual Harassment, Misconduct & Bullying in Australian live performance, Media Entertainment & Arts Alliance Survey, 2017; Pich, J (2018) Violence in Nursing and Midwifery in NSW: Study Report; ASMOF- Sexual Harassment Survey (February 2019); http://www.twu.com.au/Cabin-Crew-Sexual-Harassment-Survey-Results/.
7 Inquiry into family, domestic and sexual violenceSubmission 76 • • • provision of a positive duty in anti-discrimination law to place the onus on employers to take proactive measures to prevent sexual harassment from occurring.
Breach of the duty should be subject to enforcement by the relevant bodies and attract appropriate penalties; amend WHS laws and introduce regulations and codes of practice which explicitly deal with workplace violence and harassment as a health and safety risk that employers have an obligation to prevent and manage, and which WHS Regulators are required to enforce; and include a right of action in the Fair Work Act that enables workers to bring sexual harassment and discrimination claims to the Fair Work Commission, and give the Commission broad powers to deal with these matters, including to make stop orders, conciliate, arbitrate and award compensation.
Impact of COVID----19191919 Impact of COVID Impact of COVID Impact of COVID 32.

COVID-19 has further exacerbated existing gender inequalities.
It has led to increased unpaid care work for women, increased isolation, and higher financial insecurity and unemployment, resulting in a heightened risk of gender-based violence and harassment, both at work and at home.12 Women are over-represented in low paid, casual and insecure forms of work, and their existing disadvantage will be increased and entrenched by the economic consequences of COVID-19, such as loss of hours, stand downs and loss of jobs.

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Economic independence and job security are crucial in enabling women to leave and recover from domestic violence, and to report violence at work without fear of losing their jobs.

It is significant that half of all sexual harassment perpetrated in the workplace in the last five years occurred within the four industries in which insecure work is concentrated - healthcare and social assistance, retail trade, education and training, and accommodation and food services.13 34.
These workers are also amongst those that have been on the frontline during the pandemic.

These frontline workers (such as those in health and social work, emergency services, domestic work, transport and education) have faced increased risks of violence and harassment during the pandemic from customers, patients and clients and the general public.

The UN reported 12 Boxall H, Morgan A & Brown R (2020), The prevalence of domestic violence among women during the COVID-19 pandemic.

Statistical Bulletin no.


28.

Canberra: Australian Institute of Criminology.

https://www.aic.gov.au/publications/sb/sb28 13 Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018) 60.

8 Inquiry into family, domestic and sexual violenceSubmission 76 that 40 per cent of frontline workers in New South Wales reported more requests for help with violence.14 35.
Lockdowns have forced many people to stay at and work from home, isolating them from friends and family, and increasing the time spent with partners and the situational stressors on households which are associated with violence.

For many, the home is now their workplace, which comes with heightened risks of violence and harassment.

For people experiencing domestic violence, attending work often provided a safe haven and a way to access vital support.
Now many of those workers are required to work from home when it may not be a safe environment.

36.

There have been many reports from women’s support services and safety practitioners of domestic and family violence rising significantly during the pandemic.

Early data reported from a Monash University survey of family violence victim support practitioners showed that the number of first-time family violence reports had increased for 42.0% of those surveyed.
Additionally, more than half of the respondents reported both the frequency and severity of violence against women had increased.

The increases were largely attributed to lockdown restrictions and added social and financial stresses for households.15 37.
Research from the Australian Institute of Criminology,16 which surveyed 15,000 women about their experiences of domestic violence in the three months since February 2020, provides strong evidence that women are experiencing an increased rate of domestic violence during COVID-19 than they were before it began.

with a large proportion experiencing violence for the first time.
Of women who experienced violence since the start of the pandemic, 65.4% said the violence had started or escalated in the three months prior to the May 2020 survey and 33.1% said this was the first time their partner had been violent toward them.

Among women who had experienced violence prior to February 2020, 53.1% said the violence had increased in frequency or severity.

38.
At the same time, the pandemic has also made it more difficult for women to seek help, with increased social isolation, social distancing measures and decreased social movement 14 https://www.un.org/en/coronavirus/un-supporting-%E2%80%98trapped%E2%80%99-domestic-violence-victims-during- covid-19-pandemic 15 https://www.theage.com.au/national/victoria/new-reports-of-family-violence-spike-in-covid-19-lockdown-study-finds- 20200607-p55096.html 16 Boxall H, Morgan A & Brown R (2020), The prevalence of domestic violence among women during the COVID-19 pandemic.
Statistical Bulletin no.

28.

Canberra: Australian Institute of Criminology.

https://www.aic.gov.au/publications/sb/sb28 9 Inquiry into family, domestic and sexual violenceSubmission 76 preventing women from engaging with services or police.
The ABS Survey found 36.9% of women had wanted to seek advice or support but were unable to due to safety concerns.17 ations Recommendations Recommend ations ations Recommend Recommend Inclusion of 10 days paid domestic violence leave in the NES Inclusion of 10 days paid domestic violence leave in the NES Inclusion of 10 days paid domestic violence leave in the NES Inclusion of 10 days paid domestic violence leave in the NES 39.
There is a clear need for a universal entitlement to 10 days paid domestic violence leave that is available to all workers in Australia, including those outside of the national workplace relations system such as NSW government sector employees.

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An entitlement to 10 days paid domestic violence leave should replace the current entitlement to 5 days unpaid leave in the NES.

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The majority of the NES only apply to national system employees and employers, with the exception of two entitlements – unpaid parental leave and notice of termination.

Divisions 2 and 3 of Part 6-3 of the FWA extend these two entitlements to all employees in Australia, by giving effect to two separate ILO conventions and their Recommendations.

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Similarly, paid domestic violence leave should be extended to all employees in Australia by giving effect to the ILO Convention on Violence and Harassment 2019 (C.190) and its accompanying Recommendation (No.

206).

ILO Convention Ratification of ILO Convention Ratification of ILO Convention ILO Convention Ratification of Ratification of 43.
The Committee has included in its Terms of Reference any examples of best practice and lessons learnt from international experience that could be considered in an Australian context.

44.

The ILO Convention on Violence and Harassment 2019 (C.190) provides a comprehensive framework for employers and governments to prevent, address and reduce the risks of violence and harassment at work, including family and domestic violence.

Recommendation No.

206 supplements Convention No.


190 by setting out specific measures that can be taken, including domestic violence leave, flexible work arrangements, temporary protection against dismissal and inclusion of domestic violence in workplace risk assessments.

17 Boxall H, Morgan A & Brown R (2020), The prevalence of domestic violence among women during the COVID-19 pandemic.

Statistical Bulletin no.

28.

Canberra: Australian Institute of Criminology.


https://www.aic.gov.au/publications/sb/sb28 10 Inquiry into family, domestic and sexual violenceSubmission 76 45.

In light of the risk and incidence of violence increasing significantly during COVID-19, the Convention should be urgently ratified by Australia to ensure we are able to adequately respond to, and reduce those risks, in a nationally consistent way.
laws Work Health and Safety laws Amending Work Health and Safety Amending laws laws Work Health and Safety Work Health and Safety Amending Amending 46.

Australia’s Work Health and Safety laws require risks to be identified, assessed and eliminated, or if elimination is not reasonably practicable, risks should be minimised so far as is reasonably practicable.

For the employer to meet their duty of care to provide a safe workplace, they must consult with their workers and unions.

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47.

WHS laws apply equally to work performed from home, and employers have a duty to ensure workers are not exposed to risks to their health and safety whilst working from home, including the risk of family violence.

If it is not possible to make working from home safe, an alternative work environment must be provided (for example by allowing those workers to work from a different location or from the office).18 48.
Online guidance issued by Safe Work Australia requires employers to do what is reasonably practicable to identify the risks in relation to family violence, such as providing a safe environment for disclosure, assuring confidentiality and not requiring workers to provide unnecessary personal details.19 The duty to consult with workers and unions on what measures could be put in place to eliminate or manage any risks of violence whilst working from home is key to identifying other ways employers can manage and reduce the risk.
Unfortunately, the experience of our affiliates and their members is that employers are failing to consult in this way.

This is likely due to there being no specific WHS regulations and codes of practice dealing with violence and harassment, and therefore nothing providing clear guidance to employers on their duties and obligations.

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49.

A recent decision of the NSW Supreme Court highlights the significantly increased risk of violence workers face when working from home, and demonstrates that if employers do not take their obligations in this space seriously, they can be held liable for the consequences.
In Workers Compensation Nominal Insurer v Hill,20 the Court held that an employer can be held responsible for family violence when staff work from home, accepting the claim for workers’ 18 https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/retail/family-domestic- violence?tab=tab-toc-employer 19 https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/industry-information/retail/family-domestic- violence?tab=tab-toc-employer 20 Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54.
11 Inquiry into family, domestic and sexual violenceSubmission 76 compensation made by the children of a woman who was killed by her partner when working at home.

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In order to ensure that employers can respond effectively to the substantial risk of violence at work and at home (including family violence and sexual harassment), the WHS laws must be amended to explicitly include workplace violence and harassment as a health and safety risk that employers have an obligation to prevent and manage, and which WHS Regulators are required to enforce.
This should include a Regulation and Codes of Practice that provide clear guidance to employers on their obligations, and the kinds of measures they need to implement to eliminate, manage and mitigate the risk, including ensuring that workplace policies and risk assessment and management systems take violence and harassment into account.
ommendations of Respect@Work Report Implementation of the recommendations of Respect@Work Report Implementation of the rec ommendations of Respect@Work Report ommendations of Respect@Work Report Implementation of the rec Implementation of the rec 51.

In March 2020, the Australian Human Rights Commission published Respect@Work, the report arising from its 12-month National Inquiry into Sexual Harassment in Australian Workplaces.
The Report proposes a new approach for government, employers and the community to better prevent and respond to sexual violence and sexual harassment in the workplace.

The report recommended comprehensive changes to the legal framework, including anti-discrimination, industrial and work health and safety laws.

All of the recommendations of the Respect@Work Report should be implemented.

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52.

In addition, sexual violence and sexual harassment at work should be included as a key area for action and investment in the next National Plan to Reduce Violence against Women and their Children, as recommended in the Respect@Work Report.

The current National Plan to Reduce Violence against Women and their Children 2010-2022, and the first three Action Plans, did not directly identify sexual harassment as an area for action.
The Fourth Action Plan only addressed sexual harassment very briefly and included no specific measures.

Conclusion Conclusion Conclusion Conclusion 53.

Unions NSW urges the Committee to take this opportunity to recommend and implement the strongest possible measures to address family, domestic and sexual violence, both at home and in the workplace.

54.
54.

Unions NSW urges the Committee to include the recommendations in this submission in the next National Plan to Reduce Violence against Women and their Children, and to act on these recommendations without delay.

12 Inquiry into family, domestic and sexual violenceSubmission 76