New paid family and domestic violence leave

Employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period, according to the Fair Work Ombudsman (FWO).

From 1 February 2023, businesses must account for the government’s additional family and domestic violence leave, which was announced by Employment Minister Tony Burke in October 2022.

Mr Burke said it was important that the leave was available for any employee no matter the role. “Women can be victims of domestic violence no matter what job they work, how long they’ve been in that job, what sort of agreement they’re on or how many hours a week they work.” 

The changes mean that all national system employees will be entitled to 10 days of paid family and domestic violence leave each 12 months, replacing the old minimum statutory entitlement of five days of unpaid leave.

The new paid leave will be available to employees upfront and won’t accumulate year to year if it is not used.

Taking family and domestic violence leave

Employees (including part-time and casual employees) can take this paid leave if they need to do something to deal with the impact of family and domestic violence.

This could include, for example, the employee:

  • 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

Meaning of family and domestic violence

Under the new provisions, family and domestic violence means 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

A close relative includes a current or former spouse or de facto partner, child, parent, grandparent, grandchild or sibling.

What it means to businesses

The new leave entitlement will commence from:

  • 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023)
  • 1 August 2023, for employees of small business employers (employers with less than 15 employees on 1 February 2023).

Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement.

The new leave will be independently reviewed after 12 months to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.

From the above dates, a failure to comply with the new leave entitlements may result in a breach of the civil remedy provisions in the FWA and exposes managers to monetary fines and other court orders.

Employers will need to pay family and domestic violence leave as follows:

  • Full-time and part-time employees at their full rate of pay, on the basis that the employee had not taken the period of leave; and
  • Casual employees at their full rate or pay for the hours they were rostered to work in the period they took leave.

Payment must cover the employee’s full rate plus any incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other specific identifiable amounts.

Pay slip requirements

From 1 February 2023, there are rules about information that must not be included on an employee’s pay slip relating to paid family and domestic violence leave. This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave.

Employers need to keep a record of leave balances and any leave taken by employees. However, pay slips must not mention family and domestic violence leave, including any leave taken and leave balances.

An employee can use paid family and domestic violence leave during a period of paid personal/carer’s or annual leave. If this happens, the employee is no longer on the other form of paid leave and will be taking paid family and domestic violence leave instead. The employee needs to give their employer the required notice and evidence.

Notice and evidence requirements

If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started. An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence and it’s not practical to do that outside their hours of work.

An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:

  • The employee consents
  • 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.

The employer can’t use the information for other purposes, including taking adverse action against the employee.

What do employers need to do now?

It’s recommended that employers prepare to ensure compliance by:

  • Communicating changes to staff;
  • Educating managers on compliance;
  • Updating systems to reflect the process of new leave; and
  • Revising relevant policies and procedures to reflect the entitlement.

Source: FWO, Russell Kennedy Lawyers

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