Paid domestic and family violence leave enshrined in National Employment Standards

Key takeaways

• The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Paid FDV Leave Act) amends the National Employment Standards (NES) to provide 10 days’ paid family and domestic violence leave in a 12-month period for full time, part time, and casual employees.
• The 10 days’ paid family and domestic violence leave will come into effect from
  1 February 2023 for non-small business employers (those with 15 or more employees) and 1 August 2023 for small business employers (those with less than 15 employees).

Overview

On 9 November 2022, the Paid FDV Leave Act received Royal Assent and came into force.
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The Paid FDV Leave Act will replace an employee’s existing NES entitlement to 5 days’ unpaid family and domestic violence leave in each 12 month period of the employee’s employment, with an entitlement to 10 days’ paid family and domestic violence leave in each 12 month period of the employee’s employment.

Who is entitled to paid family and domestic violence leave?

All national system employees, including full time, part time, and casual employees, will be entitled to 10 days’ paid family and domestic violence leave in each 12 month period of the employee’s employment.
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The entitlement will be available from:‍

• 1 February 2023, for employees of non-small businesses; and
• 1 August 2023, for employees of small businesses.

Employees will still be able to access the existing 5 days’ unpaid family and domestic violence leave until the new paid entitlement comes into effect for them. The FDV Leave Act also seeks to extend access to paid family and domestic violence leave to non-national system employees (i.e., generally, public sector employees in each State, and employees in WA employed by a sole trader, partnership or unincorporated entity). This extension would only come into effect if the International Labour Organisation Convention (No. 190) concerning Violence and Harassment is ratified and comes into effect in Australia.

What is family and domestic violence and when can employees take paid family and domestic violence leave?

The Paid FDV Leave Act expands the definition of ‘family and domestic violence’ to 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; and
• causes them harm or fear.

Employees will be able to access paid family and domestic violence leave where they are:

• experiencing family and domestic violence; and
• need to do something to deal with the impact of that family and domestic violence and it is not practical for them to do so during work hours.

This could include employees needing to plan for their safety or the safety of a close relative, attending appointments with medical, financial, or legal processionals, accessing police services, or attending court hearings.

Can employers ask employees for evidence?

Employees are required to give their employer notice of the need to take family and domestic violence leave as soon as practicable and advise their employer of the period or expected period of the leave.

Employers can require an employee to provide evidence that would satisfy a reasonable person of the need to take the leave. This could include for example, documents issued by the police, a court, or family and domestic violence support service.

What is an employer’s obligation regarding the confidentiality of evidence provided by an employee?

Employers are required to take reasonable steps to ensure that any evidence received to support a request for family and domestic violence leave remains confidential. Employers are also prohibited from using the information for any purpose other than satisfying themselves that the employee is entitled to family and domestic violence leave, unless:

• the employee consents;
• the employer is required by law to deal with the information; or
• it is necessary to protect the life, health, or safety of the employee or another person.

What are the payslip requirements?

From 1 February 2023, there will also be amendments to the Fair Work Regulations 2009 introducing rules about how family and domestic violence leave must be recorded on an employee’s payslip, to support the employee’s safety.

Employers will be prohibited from including information on an employee’s payslip that shows:‍

• that an amount paid to an employee or a period of leave taken is for family and domestic violence leave; and
• an employee’s paid family and domestic violence leave balance.

Employers can record paid family and domestic violence leave in other ways, such as ‘special leave’, ‘miscellaneous leave’, or ‘leave – other’.

The purpose of these amendments is to reduce risks to an employee’s safety when they are accessing family and domestic violence leave.

When does the leave renew?

Family and domestic violence leave does not accrue year on year, but will renew on the
12-month anniversary of an employee’s start date with the employer.

For employees who commence employment after the new provisions come into effect on either 1 February 2023 (for employees of non-small businesses) or 1 August 2023
(for employees of small businesses), they will be entitled to access the full 10 days’ paid leave from the first day of employment with their employer. The 10 days will then renew on the 12-month anniversary of the employee’s start date with the employer.

For employees who are already employed when the new provisions come into effect for them, they will be able to access the full 10 days’ paid leave from either 1 February 2023 (for employees of non-small businesses) or 1 August 2023 (for employees of small businesses). The 10 days will then renew on the 12-month anniversary of the employee’s start date with the employer.

How are employees paid for family and domestic violence leave?

Full time and part time employees are required to be paid at their full rate of pay for the hours they would have worked if they were not on family and domestic violence leave.

An employee’s full rate of pay includes their base rate plus any incentive-based payments or bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts.
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Casual employees are required to be paid at their full rate of pay, for the hours they were rostered to work during the period they took family and domestic violence leave.

Employees can take paid domestic and family violence leave during a period of paid annual or personal leave, provided they give their employer the required notice and evidence. In this instance, the employee will no longer be on the other form of leave (and so will have their annual or personal leave re-credited) and will take family and domestic violence leave instead.

What are the consequences of non-compliance?

The entitlement to paid family and domestic violence leave is a civil remedy provision under the Fair Work Act 2009 (Cth) (FW Act) and failure to comply may give rise to penalties for employers and individuals involved in any contravention.

Additionally, under the general protections provisions of the FW Act, the ability to take family and domestic violence leave is a workplace right, and employers are prohibited from taking adverse action against an employee, for having or exercising that right.

What next?

In order to prepare for the new provisions, employers should:

• review and update their existing policies and procedures regarding family and domestic violence leave;
• communicate the changes to employees and provide appropriate education to supervisors and managers who deal with leave applications;
• confirm appropriate systems and training is in place to ensure confidentiality is maintained over any information provided by an employee regarding their family and domestic violence leave and that information is not used disclosed or used for another purpose, including inadvertently.
• ensure their payroll systems are equipped to implement to the new payslip requirements and keep records of family and domestic violence leave; and
• ensure they are issuing the most recent version of the Fair Work Information Statement to any new employees that reflects the current law at the start of the employment, as the statement is regularly updated by the Fair Work Ombudsman.

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