Regulatory guide - Family and domestic violence at work

Purpose

This guide aims to assist persons conducting a business or undertaking (PCBUs) in the Commonwealth work health and safety (WHS) jurisdiction, to comply with their duties under the Work Health and Safety Act 2011 (Cth) (WHS Act) in respect of family and domestic violence (FDV) in the workplace.

Read this guide in conjunction with the Safe Work Australia (SWA) information sheet on family and domestic violence at work.

Introduction

FDV is a known cause of physical and psychological harm. FDV can become a work health and safety issue if the perpetrator of FDV makes threats, intimidates or carries out violence on a partner or family member at the workplace, including if working from home. PCBUs have duties under work health and safety laws to ensure the health and safety of workers at work. This includes proactively managing the risk of FDV happening at the workplace.

Responding to workers who may use violence and aggression, or who may be experiencing FDV, is complex and needs to be handled appropriately and sensitively to ensure the health and safety of workers.

FDV is also a serious offence and is subject to criminal sanctions under the relevant state or territory laws. The Police may be required to be notified of incidents of FDV that occur in the workplace if it is necessary to protect the life, health or safety of the worker or another person.

What is family and domestic violence?

Domestic violence, also known as intimate partner violence, refers to any behaviour within an intimate relationship (current and former) that causes physical, sexual or psychological harm.

Family violence is a broader term than domestic violence because it includes violence between intimate partners, violence perpetrated by parents and guardians against children, between family members, from a person related according to Aboriginal and Torres Strait Islander kinship rules, or in a family-like setting.

FDV refers to violent, threatening, or other abusive behaviour that seeks to coerce, control, or cause harm or fear.^[1]

FDV is almost always underpinned by coercive control. This is where perpetrators use patterns of abusive behaviour over time to control another person, creating fear and taking away the person’s freedom and independence. Violence can be physical, sexual, emotional, psychological, social, cultural, spiritual or financial. It can also be facilitated by technology.

FDV can take various forms and not all forms are visible and may include, but not limited to:

• physical, emotional, or psychological abuse
• assault
• sexual assault or other sexually abusive behaviour
• stalking
• threats
• coercion or control
• repeated derogatory taunts
• intentionally damaging or destroying property
• intentionally causing death or injury to an animal
• economic abuse such as unreasonably denying financial autonomy or unreasonably withholding the financial support needed to meet reasonable living expenses
• controlling or dominating another family member and causing them to feel fear for their safety or wellbeing, or for the safety and wellbeing of another person
• behaviour by a person that causes a child to hear, witness or otherwise be exposed to the effects of family violence
• preventing a person from making or keeping connections with their family, friends or culture, and unlawfully depriving someone of their liberty.^[2]

What is family and domestic violence at work?

FDV can become a work health and safety issue if the perpetrator makes threats, intimidates or carries out violence on a partner or family member at the workplace, including if a worker is working from home.

A ‘worker’ is anyone who carries out work in any capacity for your business or undertaking, including employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers who carry out work.^[3]

A ‘workplace’ means a place where work is carried out for your business or undertaking, and includes a place where a worker goes or is likely to be while at work. It includes workers’ homes where workers have home-based work arrangements.^[4]

FDV may occur at the at the workplace, for example:

• through public access to the workplace, as well as over the phone or email.
• when a worker is working alone or in locations outside or away from their main workplace, such as at their home or on client visits.
• when a worker is moving between working locations, including between work sites and the car park.
• during work-related activities, such as training courses, conferences, work related trips, commuting to and from workplaces with colleagues and other work-related social activities.
• between workers at a workplace, for instance where a worker is working with a family member or a person with whom they have, or have had, an intimate relationship.
• by persons outside the workplace who are not workers in your business or undertaking against workers in your business or undertaking.
• by persons at work in your business or undertaking against persons who are not workers in your business or undertaking.

FDV is a known cause of physical and psychological harm to those who experience it. It may also be distressing to workers and other persons who witness FDV in the workplace and pose a risk to the health and safety of those workers and other persons in the workplace.

Examples of violent, threatening or abusive behaviours that may be perpetrated by workers at the workplace include:

• emailing, phoning, or texting the partner or family member while at work
• using work IT systems to access private information about someone
• acting abusively towards other workers or people at the workplace
• exhibiting agitation or aggression following personal phone calls, and
• making inappropriate jokes or comments about a partner or family member. These behaviours can be distressing for others in the workplace who may overhear conversations or comments made in their presence, creating cause for concern of a person’s safety or their own.

How does family and domestic violence at work cause harm?

FDV is a known cause of physical and psychological harm. Violent behaviours may pose a risk of death, serious or other physical injuries.

Violent, aggressive and threatening behaviours are also a psychosocial hazard, which can create stress. Stress creates a physiological and psychological response in the body by releasing cortisol, raising the heart rate and blood pressure, boosting glucose levels in the blood stream and diverting energy from the immune system to other areas of the body. Stress itself is not an injury, but if it becomes frequent, prolonged or severe it can cause psychological and physical harm.

Some hazards cause stress when a worker is exposed to the risk of the hazard occurring as well as when they are directly exposed to the hazard itself. For example, a worker exposed to FDV is likely to perceive stress if they perceive that the risk has not been controlled, even if they have not been exposed to FDV in the workplace previously. Despite the hazard of FDV never or rarely occurring, a worker may be exposed to prolonged stress if the hazard is not controlled.

Privacy and confidentiality

It is important that workplaces develop supportive environments where workers and others feel safe to raise concerns about FDV.

To create an environment where workers and others feel confident to talk about their experience of FDV, PCBUs should be able to demonstrate that the information disclosed will be treated as sensitive and kept private and confidential. Confidentiality is important because workers and others may not be willing or comfortable to talk about their experience without knowing it is confidential.

Any information about a worker’s experience of FDV is sensitive and confidential. Workplaces should take all reasonable steps to ensure any information disclosed by workers regarding FDV is kept confidential and secure.

Disclosure should be on a need to know basis and only to maintain safety. It’s important to note that any mishandling of information may place the worker at an increased risk of violence by the perpetrator. Disclosure may have serious consequences for the worker’s safety. Where possible, disclosure should only occur with the express consent of the worker.

It's important that PCBUs are aware of any mandatory reporting obligations they may have under Commonwealth, state of territory laws, for example, where there is a reasonable belief that child abuse is occurring.

FDV in the workplace is a complex issue and you may wish to seek further advice from your employer organisation or other work health and safety and employment law professionals.

Leave for family and domestic violence

All employees, whether full-time, part-time or casual, are entitled to FDV leave to deal with the impact of FDV.^[7]

Leave entitlements can include:

• accessing 10 days of paid family and domestic violence leave in a 12-month period^[8]
• requesting flexible working arrangements, and
• taking paid or unpaid sick or carer’s leave, in certain circumstances.

Some workplaces may also offer further paid or unpaid leave for workers experiencing FDV.

Employees may also be eligible to take personal leave or request flexible working arrangements to deal with the impact of FDV, and may also be eligible to access workplace-specific benefits or entitlements in respect of FDV.

Employers and employees can learn more about leave entitlements to deal with the impact of FDV from the Fair Work Ombudsman at Family and domestic violence leave.

Comcare's response to family and domestic violence at the workplace

As part of establishing a safe workplace, a PCBU should have developed a system or procedures for responding to and resolving work health and safety issues, concerns and complaints. If an PCBU has not established procedures to address work health and safety concerns, section 81 of the WHS Act imposes the ‘default procedure’ for resolution of health and safety issues set out in regulation 23 of the WHS Regulations.^[9]

If a worker requests assistance from Comcare with a matter concerning FDV at the workplace, Comcare will ask the worker whether they or their representative have raised the matter with the PCBU and any other worker affected by the issue. Ordinarily, Comcare may require the worker to make reasonable attempts to resolve the matter in terms of the agreed or default issue resolution procedure in place at the workplace. Comcare may also assist the worker in raising their complaint with the PCBU, if the worker is having difficulties doing so themselves.

Comcare has the discretion not to become actively involved in a matter concerning FDV where the matter may be better addressed by other means. In order to make this determination, Comcare may conduct an inspection into the PCBU’s work health and safety management system, including a review of policies, training and reporting mechanisms, that assist in identifying, managing and responding to the risk of FDV at the workplace.

Where Comcare intervenes, the worker will be asked about the outcomes they are seeking from raising their concern regarding FDV at work to inform whether Comcare is the relevant agency to pursue those outcomes.

Comcare is more likely to intervene in circumstances where significant harm has occurred ‘at work’ or where serious deficiencies exist in an employer’s work health and safety systems, which may expose workers to an increased risk of exposure FDV at work. If serious non-compliance with the WHS Act is identified, Comcare has a range of compliance and enforcement options, which can be found in Comcare’s current Compliance and Enforcement Policy (PDF, 158.2 KB).

Interaction with other laws

Work health and safety laws do not operate in isolation and other laws may apply in relation to FDV at work, including anti-discrimination and equal opportunity laws, workplace relations laws, privacy laws, workers’ compensation laws and criminal laws at Commonwealth, state, and territory levels.

Referral to other organisations

Depending on individual circumstances, a worker may be referred to, and can independently seek advice and assistance, from other organisations, such as the Fair Work Commission or the Australian Human Rights Commission, whose powers and functions under other laws (for example the Fair Work Act 2009, the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986) can achieve a different outcome that the worker may be seeking. Depending on the outcome that the worker desires, or the impacts that the conduct is having, there are a range of different organisations that the worker can seek assistance from.

National work health and safety guidance

SWA’s information sheet on family and domestic violence at work refers to the duties of PCBUs under model WHS laws, including to:

• provide and maintain a work environment that is without risk to the health and safety of workers
• provide adequate and accessible facilities for the welfare of workers to carry out their work
• give workers the necessary information, instruction, training or supervision to do their job safely and without risks to health
• consult with health and safety representatives and workers about health and safety issues that may directly affect them.

The SWA information sheet also provides material with respect to the risk management approach that should be considered to identify, manage and respond to FDV at the workplace, including:

• identifying hazards; including the need to consult with workers when gathering information
• assessing risks; based on the likelihood and consequence of FDV at the workplace
• controlling the risks; through a reasonably practicable and proactive approach, with consideration being given to matters such as:
  • third party FDV against workers
  • workers who are perpetrators of FDV
  • the physical work environment
  • safe work systems and procedures
  • reporting of incidents including to the police
  • workplace FDV policy (see the Australian Public Service Commission Template)
  • information, instruction, training and supervision
  • manager/supervisor training
  • reviewing risk control measures to ensure they remain effective
  • confidentiality
  • leave provisions.

References

[1] This definition of FDV is based on the definition set out at subsection 106B(2) of the Fair Work Act 2009 (Cth).

[2] Safe Work Australia, Information Sheet, ‘Family and domestic violence at work’.

[3] In the Commonwealth WHS jurisdiction, worker is further defined under section 8 of the WHS Act in respect of the Australian Federal Police and the Defence Force, and persons holding or acting in an office of the Commonwealth or a territory (other than the ACT or NT), constituting a public authority, a deputy member of a public authority, and members or deputy members of a body established under a public authority.

[4] The duty is not defined in terms of presence at a particular workplace. Instead, the duty relates to the health and safety of workers when they are ‘at work’. While it is not possible to state definitively when a worker is ‘at work’, a reasonable approach, derived from words in section 7, is to say that a worker is ‘at work’ in relation to a PCBU when he or she is performing the duties or functions for which the worker was engaged or caused to be engaged by the PCBU or is carrying out work under the PCBU’s influence or direction.

[5] Part 3 of the WHS Act.

[6] 'Officer' is defined in section 4 of the WHS Act.

[7] Division 7, Subdivision CA of Part 2-2 of the Fair Work Act 2009 (Cth).

[8] Entitlement under the Fair Work Act 2009 commenced on 1 February 2023 for employees in businesses other than small businesses and on 1 August 2023 for workers in small businesses (businesses with less than 15 employees). See the Fair Work Ombudsman website for details.

[9] See Regulation 23 of the Work Health and Safety Regulations 2011.