By Estha van der Linden, Senior Policy Adviser

Employees, correctly, have essential rights at work.

Many of these are mandated by employment laws, such as the right to a safe workplace and the right to be fairly remunerated for work done.

But where does the employer’s responsibility reasonably end?

Employers are increasingly required to take on social issues and to provide support for their employees when their private lives turn bad. Many businesses are happy to help, if they have the capacity and training.

However, continual increases in legislated “minimum conditions” are leaving small employers struggling to keep up.

I have not met a small employer who wouldn’t like to be an “employer of choice” like the big end of town. However, this is rarely feasible.

Small businesses are often burdened with the requirement to effectively provide social services, such as garnishing wages for child support and enforcing mandatory savings of superannuation. We must ask, at what point does all of this become an unfair burden on a small business?

Recently, applications have been made to the Fair Work Commission to add blood and bone marrow donor leave and domestic violence leave into modern awards — increasing the minimum conditions required of businesses.

Legislation like this makes small employer responsibility merely a legislated box-ticking exercise without genuine understanding of the burden it imposes.

Previously, these types of leave were negotiated at a workplace level. This provided additional flexibility in a way that suited the both the business and the employees.

Setting the overarching legislative bar too high restricts the ability of workplaces to negotiate on things that need mutual buy-in to work.

Originally included in the Australian Council of Trade Unions claim for domestic violence leave was a requirement for all businesses to have a person in the workplace trained in dealing with domestic violence situations.

This claim, though subsequently withdrawn, highlights the increasing expectations upon even small employers.

Unsurprisingly, most employers — let alone small ones — do not have adequate training in social work and mental health to safely become involved in situations beyond the workplace.

All good employers prioritise the health and safety of their workers, but will they soon be expected to ensure the health and safety of employees outside of the workplace?

All good employers also see the holistic health and safety of their workers as a priority, but must the employer’s response to these needs be restricted and dictated by legislation?

In the decision from the full bench of the Fair Work Commission on domestic violence leave, then-FWC vice-president Graeme Watson expressed the view that openness and a collaborative approach to solutions is fundamental to successfully dealing with the problem.

We agree. Surely the best approach is one which is open, fair and flexible for both parties outside of the imposition of an arbitrary, “one size fits all” approach.