Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue

Fact sheet: Domestic and family violence - a workplace issue, a discrimination issue

 

 

The right to live a life free of domestic and family violence

There are many forms of violence against women, including:

• Intimate partner violence (also referred to as domestic and family violence)
• Rape and sexual assault
• Stalking
• Sexual harassment

The United Nations Declaration on the Elimination of Violence against Women defines violence against women as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’.^[1]

This fact sheet focuses specifically on domestic and family violence, which is most often perpetrated in the home against women by their male current or former partner.

Under international human rights law, it is well established that domestic and family violence is a violation of human rights,^[2] with grave and far-reaching repercussions for victims, survivors and their children.

The United Nations Convention on the Elimination of All Forms of Discrimination against Women requires governments to take appropriate measures to eliminate discrimination against women (which includes violence against women) in all areas of life including in employment, and to ensure that women have access to safe and healthy working conditions.^[3]

Australia also has a range of federal, state and territory legislation that prohibits discrimination, as well as legislation which requires employers to create workplace environments that are safe and free from violence, discrimination and harassment.

How prevalent is domestic and family violence in Australia?

In Australia, approximately one woman is killed by her current or former partner every week, often after a history of domestic and family violence.[4]

• 34% of women have experienced physical violence since the age of 15.^[5]
• 17% of women have experienced violence from a current or former partner since the age of 15 (compared to 5.3% of men).^[6]
• 30% of respondents to a 2011 survey on domestic and family violence and the workplace reported they had experienced violence, and 5% of those respondents had experienced violence in the last 12 months.^[7]

Why is domestic and family violence a workplace issue?

Domestic and family violence is not just a private or personal issue. When an employee is living with domestic and family violence, there are often very real costs and negative impacts that flow to the workplace.

Health costs: In Australia, intimate partner violence is the leading contributor to death, disability and illness in women aged 15 to 44 years. It is responsible for more of the disease burden in women than many other well-known risk factors, such as smoking and obesity.^[8]

Economic costs: In 2002/03 the cost of intimate partner violence to the Australian economy was estimated at $8.1 billion. If no preventative action is taken, this cost is projected to rise to $9.9 billion annually by 2021/22. $235 million of this $9.9 billion will be borne by employers and $609 million will be borne in production-related losses.^[9]

Workplace costs: Within the population of women who have experienced violence, or are currently experiencing violence, the Australian Bureau of Statistics estimates that between 55% and 70% are currently in the workforce[10] – that is, approximately 800,000 women, or around one in six female workers. This means that a significant number of Australian workplaces will be impacted by women’s experiences of domestic and family violence.

Some common costs and impacts include:

• Decreased staff performance and productivity
• Increased staff turnover and absenteeism
• Negative impact on the organisation’s reputation and image.^[11]

Impacts on employees: Research into the workplace implications of domestic and family violence has demonstrated how such violence can undermine the working lives of both victims and survivors.

The 2011 National Domestic Violence and the Workplace Survey found that nearly half (48%) of respondents who reported experiencing domestic and family violence said the violence had affected their ability to get to work.^[12] The main impact of violence was on work performance - 16% of victims and survivors reported being distracted, tired or unwell and 10% needed to take time off work.^[13] Further, women who experience domestic and family violence are also more likely to have lower personal incomes, a disrupted work history, often have to change jobs at short notice and are very often employed in casual or part time work.^[14]

 

 

 

Domestic and family violence perpetrated in the workplace: The perpetrator of domestic and family violence may go so far as to target the victim or survivor at work. They may do this through emails, by phone or by turning up at the office in order to try and get the victim/survivor fired or force them to resign. This can be part of an effort to increase control over the victim/survivor– that is, by increasing the victim/survivor’s economic dependency, undermining their self-confidence - or in order to punish them for attempting to leave the violent relationship.^[15]

Why do we need to recognise experience of domestic and family violence as a ground of discrimination?

Victims and survivors of domestic and family violence can face a number of challenges in the workplace.

Discrimination is one such challenge. When experienced, discrimination can compound the harm of the original acts of violence.

There is also a growing body of evidence which shows that victims and survivors of domestic and family violence often experience discrimination related to their experience of domestic and family violence, particularly in the workplace.^[16] These women may be discriminated against, for example, as a result of taking time out of work (sick leave or carers leave) or because they temporarily have lower levels of productivity due to the violence that they are experiencing at home.

Discrimination related to the experience of domestic and family violence can take the form of:

• being denied leave or flexible work arrangements that would assist victims and survivors to attend to violence-related matters, such as attending court or moving into a shelter
• having employment terminated for reasons relating to the violence they are experiencing, including a drop in performance or attendance caused by the domestic and family violence, or
• being transferred or demoted for reasons related to the violence.^[17]

There is a sound case for introducing domestic or family violence as a protected attribute within existing anti-discrimination legislation at the federal, state and territory level. Such a protected attribute would recognise that those who are or have experienced domestic and family violence should not be subjected to discrimination as a result of that experience. Introducing domestic and family violence as a protected attribute would offer protection from discrimination not currently available under the SDA.

Under international human rights law gender-based violence, such as domestic and family violence, is recognised as a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.^[18]

Women who experience domestic and family violence are not only at risk of discrimination in the workplace, but in other areas of their lives such as in the provision of goods and services. Research undertaken as part of the Safe at Home, Safe at Work^[19] project suggests that women in or leaving violent relationships often experience discrimination in accessing housing services, particularly rental accommodation.

The Commission has previously recommended that 'domestic violence' be recognised as a protected attribute, in federal anti-discrimination laws as well as in the Fair Work Act 2009 (Cth).^[20] Similar recommendations have also been made by the Australian Law Reform Commission^[21] and the Senate Legal and Constitutional Affairs Committee^[22].

What are the benefits of recognising domestic and family violence as a ground of discrimination?

There are a range of compelling reasons to introduce a ground of discrimination concerning domestic and family violence in anti-discrimination legislation, some of which are outlined below:

• Creation of a discrimination ground would clarify and strengthen existing discrimination protections

While there are anti-discrimination laws at each of the state, territory and federal levels, to date, domestic and family violence has not been recognised as a protected attribute in these laws. Additionally, evidence suggests that victims and survivors often face difficulties seeking legal redress under the existing grounds of discrimination in anti-discrimination laws.

The result is that none of the existing state, territory or federal legislative frameworks are sufficient to protect women who are experiencing or who have experienced domestic and family violence from further discrimination.

The inclusion of domestic and family violence as a protected attribute under anti-discrimination laws at the federal, state and territory levels, would help to clarify and strengthen existing discrimination laws, which already provide some limited protection to victims and survivors of this form of violence.[23]

Current protections and gaps within the existing federal anti-discrimination legislation are found in:

1. Sex Discrimination Act 1984 (Cth):

Many of the protected attributes under the Sex Discrimination Act are listed as ‘innate characteristics’ (for example pregnancy, sexual orientation or gender identity).

Yet, not all of the characteristics listed as requiring protection fall within this category.

It has long been recognised that people can face discrimination on the basis of attributes that are not physical or innate - for example, as a result of their marital status, relationship status or family responsibilities. The Sex Discrimination Act recognises these protected attributes as grounds of discrimination.

While victims and survivors may be able to make a valid claim under the existing legislation, a gap exists whereby the discrimination experienced by persons who have been subject to domestic and family violence cannot be directly linked to an existing protected attribute.

The introduction of domestic and family violence as a stand-alone protected attribute would, therefore, allow for a more comprehensive form of protection and greater consistency of approach.[24]

2. Disability Discrimination Act 1992 (Cth)

For victims and survivors of domestic and family violence who have a disability, the Disability Discrimination Act is also of limited use. In addition to requiring that the victim/survivor lives with a disability, it requires that disability be one of the reasons that the person was discriminated against. This means that this Act has limited application where the only reason that a person with a disability is discriminated against is because they are experiencing domestic and family violence.

The introduction of domestic and family violence as a stand-alone protected attribute in this legislation would, therefore, provide specific protection in these circumstances.

3. Fair Work Act 2009 (Cth)

The Fair Work Act provides eligible employees who are experiencing domestic and family violence, or eligible employees who are providing care or support for a family or household member experiencing domestic and family violence, the right to request flexible working arrangements. However, the discrimination that employees can face when they disclose their experience of domestic and family violence often prevents them from accessing this right under the Fair Work Act.

Additionally, there is no right of appeal if this right to request is denied. It therefore follows that women are often unlikely to request this right to work flexibly for fear that they may face discrimination due to the stigma surrounding domestic and family violence, or the misconception that women experiencing violence are unproductive or unreliable.

The introduction of domestic and family violence as a protected attribute under anti-discrimination laws would help to address these existing gaps. It would most likely have the effect that more employees who are experiencing, or providing care or support for someone who is experiencing, domestic and family violence, would feel protected from discrimination. Therefore they would be less likely to fear discriminatory attitudes – and they would be more likely to avail themselves of measures such as the Fair Work Act right to request flexible working arrangements.

• Creation of a discrimination ground would decrease social and economic costs of violence against women

In an ILO report on gender-based violence in work, the authors argued that “economic growth, competitiveness, development and efficiency can only be achieved where barriers to productive and quality employment opportunities are eliminated for both men and women”.^[25]

At the same time, it is known that employment plays a critical role in assisting victims and survivors of domestic and family violence to leave their violent relationships.^[26] Eliminating the discrimination that these victims and survivors can face will therefore improve their ability to access and remain in employment.

Additionally, the costs of domestic and family violence to the Australian economy and to Australian business are exacerbated when victims and survivors are subjected to discrimination (for example where their employment is terminated and costs are incurred in recruiting and training a new employee).

We know that the mental and physical consequences of violence have a negative impact on workplace productivity and performance^[27]. These impacts are potentially further exacerbated when victims and survivors face discriminatory treatment from employers.

So it follows that making discrimination related to domestic and family violence unlawful in the workplace (and in the provision of services, or housing) would thus be an important and positive contributor to achieving workplace equality and wellbeing and, accordingly, enhancing workplace productivity.

• Creation of a discrimination ground would serve an educative function

Including domestic and family violence as a protected attribute under anti-discrimination legislation is likely to:

• enable domestic and family violence to be identified and acknowledged as a legal wrong in need of redress and prevention
• help raise community and business awareness about the impact of domestic or family violence
• increase understanding of the individual and systemic implications of this issue in education, housing, employment and other areas
• facilitate the adoption of measures to eliminate existing, and prevent future, acts of discrimination (eg. where women disclose experiences of domestic or family violence and are dismissed as an ‘unreliable’ staff member)
• facilitate the adoption of policies and procedures to support victims and survivors of domestic and family violence in a range of settings
• assist changes to workplace culture and other environments so they become more supportive of victims and survivors, and
• foster an environment in which victims and survivors can feel free to disclose their violent situations and the impacts with a view to developing effective means of resolution and redress.

• Creation of a discrimination ground would complement other strategies

The introduction of domestic and family violence as a separate ground of discrimination under anti-discrimination legislation would complement other strategies such as:

• the National Plan to Reduce Violence against Women and Their Children, which recognises that all governments and the wider community must be involved to reduce (in the short term) and prevent (in the long term) violence against women in Australia^[28]
• emerging workplace-based strategies for addressing domestic and family violence, notably inclusion of domestic and family violence clauses in enterprise agreements, especially in situations where workplace entitlements have been exhausted.^[29]

What can workplaces do to support employees experiencing domestic and family violence?

Workplaces can play a positive role by providing safe and supportive environments for their employees, particularly those employees who are experiencing violence. This can result in strong benefits for the employer, including higher retention rates, higher staff morale, and higher health outcomes for their employees.

There are a range of actions a workplace can take to ensure that they are providing adequate support for victims and survivors of domestic or family violence.

The role of leaders

An important first step is for workplaces to begin a conversation about domestic and family violence - one where employers send a clear message to their employees that:

• domestic and family violence is an issue that affects the workplace
• those experiencing it are not alone
• they should feel confident that disclosing a violent situation will not result in adverse consequences for them or their employment, and that
• bystanders should stand up against violence in the workplace.

Establish clear policies and procedures

• Develop a policy about supporting women who are victims and survivors of domestic and family violence.
• Develop policies for safe work places, free from harassment and bullying, which also deal with employees who perpetrate violence in the workplace.
• Ensure these policies and procedures are clearly articulated to staff and that employees are encouraged to make use of them.
• Use the Domestic Violence Policies and Procedures guide (Annex A).

Make provision for leave or flexible work arrangements

• In their enterprise agreements or awards, workplaces can provide dedicated paid leave for women experiencing domestic and family violence. As of 2013, over one million Australian workers are able to avail themselves of leave and other protections made available through domestic and family violence clauses in their agreement or award conditions.^[30]
• Offer flexible work arrangements, as provided for under the Fair Work Act.

Establish clear roles and responsibilities and build capacity

• Clearly articulate the roles and responsibilities of line managers and senior leadership in supporting victims and survivors and in dealing with perpetrators in the workplace.
• Ensure managers and those responsible for policy implementation and safety planning receive adequate training and support.

Implement an awareness-raising and education programs

• Ensure all staff have an understanding of the impacts of domestic and family violence on individuals and on the workplace.
• Ensure staff receive training on how to recognise signs that a colleague may be experiencing domestic and family violence.

Ensure adequate support is provided for affected employees

• Discuss the short and longer term needs and requirements of the affected employee.
• If required, develop a safety plan.
• Ensure ongoing communication and regularly check in with the affected employee.
• Respect privacy and confidentiality.
• Ensure employees are aware of appropriate support services. For example, some Employee Assistance Programs have counsellors trained in domestic and family violence counselling.

Conduct safety planning with affected employees

• Ensure managers receive training in developing a safety plan for women.
• Use the Developing an Effective Safety Plan guide (Annex B).

Provide referrals and external support

• Ensure those staff required to support other staff (eg. managers) are aware of the appropriate support and referral pathways for women who experience violence and men who perpetrate violence, as well as support available for themselves.
• Use the Information and Referrals guide (Annex C).

Encourage monitoring and reflection

• Ensure that you monitor and reflect on your progress in this area after you’ve worked through the above actions.
• Use the Assessing Responses to workplace Domestic Violence Questionnaire (Annex D)
• The Workplace Gender Equality Act 2012 requires workplaces with 100 or more employees to report annually on whether there is a formal workplace policy or strategy or other measures in the workplace to support employees experiencing domestic and family violence.

Other helpful resources

• Australia’s CEO Challenge – Workplace partners against domestic violence: ceochallengeaustralia.org/
• Human Rights Law Centre - Fact sheets on human rights obligations relevant to domestic violence in the thematic areas of housing, justice, police and the workplace: http://hrlc.org.au/human-rights-and-domestic-violence-fact-sheets/
• Safe at Home, Safe at Work - domestic violence workplace rights and entitlements project (UNSW Gendered Violence Research Network) http://www.dvandwork.unsw.edu.au/
• VicHealth:
  • Creating Healthy Workplaces Program: www.vichealth.vic.gov.au/Programs-and-Projects/Economic-Participation/Creating-Healthy-Workplaces.aspx
  • Generating Equality and Respect program: www.vichealth.vic.gov.au/Programs-and-Projects/Freedom-from-violence/Local-government-and-community/Preventing-Violence-Against-Women-Demonstration-Site.aspx
• White Ribbon’s National Workplace Program: www.whiteribbon.org.au/workplaces

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^[1] United Nations, Declaration on the Elimination of Violence against Women, UN Doc A/Res/48/104, (1993), art 1.
^[2] It has been recognised that domestic and family violence violates a wide range of human rights and fundamental freedoms, including the rights to life, not to be subject to torture or to cruel, inhuman or degrading treatment or punishment, equal protection according to humanitarian norms in time of international or internal armed conflict, liberty and security of person, equal protection under the law, equality in the family, the highest standard attainable of physical and mental health, and right to just and favourable conditions of work. See CEDAW Committee, General Recommendation No. 19: Violence against Women, UN Doc. A/47/38 (1992), para 7.

[3] United Nations, Convention on the Elimination of All Forms of Discrimination against Women, UN Doc A/34/46 (1979), art 11.

[4] See J Dearden & W Jones, Homicide in Australia: 2006 – 07 National Homicide Monitoring Program Annual Report, Australian Institute of Criminology (2008), p 2.

[5] Australian Bureau of Statistics, 4906.0 - Personal Safety, Australia, 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Features12012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view=) (viewed 20 November 2013).

[6] Australian Bureau of Statistics, 4906.0 - Personal Safety, Australia, 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Features12012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view=) (viewed 20 November 2013).

[7] Ludo McFarran, National Domestic Violence and the Workplace Survey (2011).

[8] See VicHealth, The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence (2004), p 8.

[9] National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children (2009). At: https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_economic_report.pdf (viewed 27 July 2015).

Note: In the 2008/09, the cost of violence against women (including intimate partner violence and non-intimate partner violence) to the Australian economy was estimated at $13.6 billion. If no preventative action is taken, this cost is projected to rise to $15.6 billion annually by 2021/22. Of which $456 will be borne by employers and $1.2 billion will be borne in production-related losses. National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children (2009). At: https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_economic_report.pdf (viewed 27 July 2015).

[10] Australian Bureau of Statistics, Personal Safety, Australia, 2005 (Reissue), Cat. No. 4906.0, 35. At: www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Main+Features12005%20(Reissue)?OpenDocument (viewed 12 October 2011).

[11] Workplaces respond to domestic and sexual violence: A National Resource Centre, ‘Impacts of violence on the workplace’. At http://www.workplacesrespond.org/learn/the-facts/impact-of-workplace-violence (viewed 14 July 2014); Adrienne Cruz & Sabine Klinger, Gender-Based Violence in the World of Work: Overview and Selected Bibliography, International Labour Office, Working Paper 3/2011 (2011), pp 13 and 15.

[12] Ludo McFerran, Safe at Home, Safe at Work? National Domestic Violence and the Workplace Survey (2011), p 17.

[13] Ludo McFerran, Safe at Home, Safe at Work? National Domestic Violence and the Workplace Survey (2011), p 10.

^[14] Domestic Violence Workplace Rights, and Entitlements Project, Domestic, Violence and the Workplace Employee, Employer and Union Resources (2011).
^[15] Ludo McFarran, National Domestic Violence and the Workplace Survey (2011).

[16] See, for example, Commonwealth, Parliamentary Debates, Senate, 23 January 2013, 27-36 (Anna Davis, National Alliance of Working Women’s Centres; Shabnam Hameed, Australian Domestic and Family Violence Clearinghouse; Gaby Marcus, Australian Domestic and Family Violence Clearinghouse; Fiona McCormack, Domestic Violence Victoria; Ludo McFerran, Australian Domestic and Family Violence Clearinghouse). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/commsen/8eb3bdec-c603-4d2d-9564-674c7bd7b5c2/0000%22 (viewed 14 July 2014); Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (2013) [3.51]-[3.60]. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/antidiscrimination2012/report/index (viewed 14 July 2014).

[17] Australian Human Rights Commission, Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation (21 April 2011), para. 47. At: http://www.humanrights.gov.au/legal/submissions/2011/20110421_family_violence.html (viewed 15 October 2014).

[18] See CEDAW Committee, General Recommendation No. 19: Violence against Women, UN Doc. A/47/38, (1992), paras 1 and 6.

[19] Case studies of such discrimination across a range of areas have been provided by Working Women's Centres, Domestic Violence Legal Service NSW, and the ASU Victorian Authorities & Services Branch.

^[20] The Australian Human Rights Commission recommended that federal anti-discrimination legislation and the Fair Work Act 2009 (Cth) prohibit discrimination on the ground of domestic and family violence. Australian Human Rights Commission, Consolidation of Commonwealth Discrimination Law – domestic and family violence, (2012). At http://www.humanrights.gov.au/consolidation-commonwealth-discrimination-law-domestic-and-family-violence (viewed 13 June 2014); Australian Human Rights Commission, Post Implementation Review of the Fair Work Act 2009 (2012). At http://www.humanrights.gov.au/post-implementation-review-fair-work-act-2009#s8_3 (viewed 14 August 2014); Australian Human Rights Commission, Australian Law Reform Commission: Family Violence and Commonwealth Laws: Employment and Superannuation

(2011). At http://www.humanrights.gov.au/legal-research-and-resources-1 9viewed 14 August 2014)

[21] Australian Law Reform Commission, Family Violence and Commonwealth Laws - Improving Legal Frameworks Final Report (2011), ALRC Report 117, Recommendation 16-8. At http://www.alrc.gov.au/publications/family-violence-and-commonwealth-laws-improving-legal-frameworks-alrc-report-117 (viewed 14 August 2014).

[22] Senate Legal and Constitutional Affairs Committee, Report on the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (2013), Recommendation 3. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/antidiscrimination2012/report/index (viewed 14 August 2014).

[23] Australian Human Rights Commission, Domestic Violence as a Ground of Discrimination: Roundtable, Sydney, 3 November 2011.

[24] Australian Human Rights Commission, Domestic Violence as a Ground of Discrimination: Roundtable, Sydney, 3 November 2011.

[25] A Cruz & S Klinger, ‘Gender-Based Violence in the World of Work: Overview and Selected Bibliography’, International Labour Office, Working Paper 3/2011 (2011), p 73.

[26] See generally R Braaf & I Barrett Meyering, Seeking Security: Promoting Women’s Economic Wellbeing Following Domestic Violence (2011).

[27] A Cruz and S Klinger, Gender-Based Violence in the World of Work: Overview and Selected Bibliography, International Labour Office, Working Paper 3/2011 (2011), p 15.

[28] Australian Government, National Plan to Reduce Violence against Women and Their Children (2011), p i.

[29] See for example, University of New South Wales (Academic Staff) Enterprise Agreement 2011, cl 33.4. At: http://www.hr.unsw.edu.au/services/indrel/UNSW_Academic_Staff_Enterprise_Agreement_2011.pdf (viewed 14 July 2014). For other examples, see Australian Domestic & Family Violence Clearinghouse, ‘Domestic Violence Workplace Rights and Entitlements Project: ‘Safe at Home, Safe at Work’. See generally Australian Law Reform Commission, Family Violence – Commonwealth Laws: Discussion Paper (2011), pp 542-556. At http://www.alrc.gov.au/publications/family-violence-and-commonwealth-laws-dp-76 (viewed 14 July 2014).

[30] Ludo McFerran, Safe at Home, Safe At Work Project, Australian Domestic and Family Violence Clearing House, UNSW, ‘When domestic violence becomes a workplace problem’, ABC The Drum Opinion 13 February 2013. At http://www.abc.net.au/unleashed/4516492.html (viewed 14 July 2014).