Family and Domestic Violence Leave

Effective 1 February 2023, businesses with more than 15 employees regardless of whether their staff are full time, part time and casual employees will be able to access 10 days of paid family and domestic violence leave each year as part of the National Employment Standards (NES) in the Fair Work Act.  For small businesses (those that employ less than 15 people), the effective date is 1 August 2023. The previous entitlement under the NES was five (5) unpaid leave days per employee annually.
 
The 10 days leave will be immediately accessible from 1 February 2023 (and 1 August 2023 for small businesses).  It is important to note that it is not pro-rated, every employee will be entitled to 10 days of paid leave per year regardless of their employment status (provided they were scheduled to work on the day they take as paid Family and Domestic Violence Leave).  As an example, if we have a part time employee who normally works 20 hours per week Monday to Friday and they take leave for that whole week they will be entitled to be paid 20 hours of Family and Domestic Violence Leave.  This means they would have used five (5) days of their entitlement and have five (5) days remaining until it renews on their annual work anniversary and they receive a further 10 days.

How Domestic and Family Violence Leave Renews

Family and Domestic Violence Leave does not accumulate from year to year if it isn’t used and the leave entitlement renews on each employee’s work anniversary.  This entitlement will replace the current five (5) days of unpaid Family and Domestic Violence Leave.
 
Taking Family and Domestic Violence Leave

Employees (including part-time and casual employees) can take paid Family and Domestic Violence Leave if they need to do something to deal with the impact of family and domestic violence and it’s not practical for them to do so while they're working.
 
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; or

• attending appointments with medical, financial or legal professionals.

 
Meaning of Family and Domestic Violence

Under the new provisions,Family and Domestic Violencemeans ‘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 andcauses them harm or fear.
 
Aclose relativeis an employee’s spouse or former spouse; de facto partner or former de facto partner; child; parent; grandparent; grandchild; sibling; a child, parent, grandparent, grandchild or sibling of a employees current or former spouse or de fact 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 paid Family and Domestic Violence Leave at their full pay rate for the hours they would have worked if they weren't on leave.

Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.

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

• incentive-based payments and bonuses;

• loadings;

• monetary allowances;

• overtime or penalty rates; and

• any other separately identifiable amounts.

 
Interaction with other Leave Entitlements

An employee can use paid Family and Domestic Violence Leave during a period of paid Personal (Sick/Carer’s) Leave or Annual Leave. If this happens, the employee is no longer on the other form of paid leave and is taking paid Family and Domestic Violence Leave instead. The employee needs to give their manager the required notice and evidence.
 
Pay Slip Requirements

From 1 February 2023, there are rules about information that mustnotbe included on a employees 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.
 
For pay slips, employers are prohibited from including information that shows:
 

• that an amount paid to an employee is a payment for Paid Family and Domestic Violence Leave;

• a period of leave taken by an employee has been taken as paid Family and Domestic Violence Leave; and

• an employee’s paid Family and Domestic Violence Leave Balance.

 
When an employee takes paid Family and Domestic Violence Leave, it needs to be recorded on the pay slip in other ways, for example as ‘Leave–Other’.
 
Notice and evidence requirements

If an employee takes paid Family and Domestic Violence Leave, they have to let their manager know as soon as possible. This could be after the leave has started.
 
Their manager can ask 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.  Types of evidence can include documents issued by the police service; documents issued by a court; family violence support service documents; or a statutory declaration.
 
If the employee doesn't provide the requested evidence, they may not be eligible for paid Family and Domestic Violence Leave.

Confidentiality

Businesses need to take reasonably practicable steps to keep any information about an employee’s situation confidential. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide. However, businesses are not prevented from disclosing information if it's required by law, or is necessary to protect the life, health or safety of the employee or another person.
 
Businesses also need to be aware that any information about an employee’s experience of family and domestic violence is sensitive so if this information is mishandled, it could have adverse consequences for the employee. It is imperative that the business works with the employee to discuss and agree on how this information will be handled.
 
Next Steps for Employers

Businesses need to consider and action the following prior to the introduction of paid Family and Domestic Violence Leave:

• Update your current Family and Domestic Violence Leave Policy and put processes in place whereby employees requesting this entitlement can do with confidence that it will be kept strictly confidential.

• Communicate the new entitlement to your business.

• Ensure your payroll software is able to include the taking of this leave (e.g., refer to it as ‘Other’ leave) in such a way where it cannot be identified on the employee’s pay slip.