Family & Domestic Violence Leave

Ten days of paid leave is now available to Australian employees experiencing family & domestic violence.

A historic change for Australian employees is set to begin on 1 February 2023 as 10 days of paid family and domestic violence (FDV) leave will replace the current 5 days unpaid leave under the National Employment Standard (NES).

Key Take Aways

This new leave will be available from:

o 1 February 2023 for employees of a non-small business (more than 15 employees)

o 1 August 2023 for employees of a small business (less than 15 employees)

This leave will be available to full-time, part-time and casual employees. Employees will continue to be entitled to 5-days of unpaid FDV leave until they can access this new leave. However, this new 10-day paid leave will replace the existing 5-day entitlement under the National Employment Standards (NES).

The 10-day leave entitlement will renew each year on each employee’s work anniversary. It will not accumulate from year to year but is available upfront. This means that you can access the full 10-days straight away.

Who can take this leave?

Employees can take this paid leave if they need time to deal with the impact of family and domestic violence. This includes:

- making arrangements for their safety, or the safety of a close relative (including relocation)

- attending court hearings

- accessing police services

- attending counselling

- attending appointments with medical, financial, or legal professionals.

Under the new provisions, family and domestic violence will now mean, violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household that both:

- seeks to coerce or control the employee.

- causes them harm or fear.

with a close relative including:

- an employee’s

o spouse or former spouse

o de facto partner or former de facto partner

o child

o parent

o grandparent

o grandchild

o sibling

- a child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner, or

- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Payment for leave

Full time and part-time employees can take this paid leave at their full pay rate for the hours they would have worked if they weren’t on leave.

Causal employees will be paid their full rate for the hours they are rostered.

An employee’s full pay rate is their base rate plus any:

- incentive based payments and bonuses.

- loadings

- monetary allowances

- overtime or penalty rates

- any other separately identifiable amounts

Notice Requirements

If an employee takes paid FDV leave they must let their employer know as soon as possible. This can happen after the leave has started.

The employee must advise the employer of the period of time they expect to take this leave.

An employer can ask for evidence to show that the employee needed time to deal with family and domestic violence and it was not practical to do outside of work hours.

Information Required

The evidence must convince a ‘reasonable person’ that the employee took leave to deal with the impact of family and domestic violence. No definition of ‘reasonable person’ is provided for under the Fair Work Act 2009. However, in Australian law a reasonable person is characterised as an average member of society, whom in this instance has sound judgement and generalised attributes when making a decision. Evidence outlined by Fair Work Australia below is applicable evidence that a reasonable person would regard as evidence of family and domestic violence.

Evidence may include:

- documents issued by the police

- documents issued by a court.

- family violence support service documents, or

- a statutory declaration

An employer can ask their employee to provide evidence for as little as 1 day or less off work. If an employee does not provide their employer with requested evidence, they may not get the leave.

Employer confidentiality.

An employer can only use the information provided to them to the extent that they are satisfied that the employee is entitled to this paid leave unless:

- the employee consents[GV1]

- the employer is required to deal with the information by law, or

- it’s necessary to protect the life, health or safety of the employee or another person.

An employer CANNOT use this information for other purposes, including to take adverse action against the employee.

Employers must take reasonable steps to keep any information confidential. This includes complying with new rules under s757BA of the Fair Work Act 2009 which outlines that the employer must not include on the pay slip any information that relates to FDV leave. This change has been implemented to reduce risk to an employee’s safety.

Employers will keep a record of leave balances, however the leave balance and mention of FDV leave will not appear on the employee’s payslip.

https://www.fairwork.gov.au/newsroom/news/new-paid-family-and-domestic-violence-leave?gclid=EAIaIQobChMIzNay6vDy_AIVPNdMAh3J0QT3EAAYASAAEgLqfvD_BwE&gclsrc=aw.ds

Current legislation:

Fair Work Act 2009, ss106A-E, 107

Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022:

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6882

https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6882_aspassed/toc_pdf/2258b01.pdf;fileType=application%2Fpdf