Paid Family and Domestic Violence Leave Entitlement Comes Into Force
Background
New changes to the Fair Work Act 2009 (Cth) (FWA) as of 1 February 2023 have introduced paid family and domestic violence (FDV) leave for employees who are dealing with the impacts of FDV.
The rationale behind these changes was brought about due to the increased prevalence and severity of FDV in Australia since the COVID-19 pandemic. The Federal Government also recognises that people affected by FDV are often restricted with steps they can take to leave violent situations without risking unemployment or financial hardship.
The New Entitlement
The new entitlement sees all employees (full, part time and casuals) provided with 10 days of paid FDV leave per 12 month period. This entitlement replaces the existing entitlement in the National Employment Standards (NES) which was 5 days of unpaid FDV leave. For workers in small businesses (less than 15 employees), the new entitlement will commence on 1 August 2023, to allow time for small business employers to adapt and implement the changes. Employees of small businesses will need to rely on the 5 day unpaid leave entitlement in the mean time.
Full and part time employees who take FDV leave will be entitled to be paid at their full rate of pay as if they had not taken the period of leave, while casual employees who take FDV leave will be entitled to be paid at their full rate of pay for the hours they were rostered to work in the period they took FDV leave.
Unlike other leave entitlements like annual leave or personal/carer’s leave, FDV does not accumulate over time. Employees have the 10 days of paid leave accessible straight away however it does not accumulate from year to year. Instead, it renews back to 10 days on the employee’s work anniversary meaning that an employee’s FDV leave balance will never be more than 10 days.
When Can FDV Leave Be Taken?
Employees can take paid FDV leave if they need to do something to deal with the impact of family and domestic violence and it was impractical to do that thing outside their work hours.
The definition of “family and domestic violence” has also been expanded to include conduct of an employee’s current or former partner, or a member of an employee’s household. This will ensure that employees can access FDV leave regardless of whether the employee is living with the perpetrator. The definition in full now reads as follows:
“Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that:
(a) seeks to coerce or control the employee; and
(b) causes the employee harm or to be fearful.”
New examples of reasons for an employee taking FDV leave have also been added to the FWA. In full they are:
Arranging for the safety of themselves or a close relative (including relocation);
Attending court hearings;
Accessing police services;
Attending counselling; and/or
Attending appointments with medical, financial or legal professionals.
What Are The Notice and Evidence Requirements?
Whilst family and domestic violence is a sensitive topic, employees still have obligations to provide notice to their employer if they need to take FDV and may be asked for related evidence. Notice must be given to employers as soon as practicable by the employee; this can be after the leave has started. They must also advice the employer of how long they expect to be on FDV leave.
Employers may also require employees to provide evidence that would satisfy a reasonable person that the leave is being taken for the purpose of family and domestic violence. This could include police documents or documents from family violence support services for example.
Considerations for Employers
Employers must now be aware of and turn their mind to the following in light of these changes:
Records of leave balances and any leave taken by employees must be kept.
Payslips must not mention FDV in any way; this is to reduce the risk to an employee’s safety in the circumstances. Instead when FDV leave is taken, it should be displayed on the employee’s payslip as either an amount paid for the employee’s ordinary hours of work or another kind of payment in relation to the employee’s performance such as an allowance.
Workplace policies and procedures should be updated to ensure compliance.
The changes should be effectively communicated to all employees.
If you require assistance or advice regarding compliance, or the implementation of these new changes, please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal
Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
