What you need to know about the new paid family and domestic violence leave entitlement

On 1 February 2023, most employees became entitled to 10 days of paid family and domestic violence leave each year under the National Employment Standards (NES). For employees engaged by a small business employer, this entitlement will come into effect on 1 August 2023.

The entitlement to paid leave replaces the existing NES entitlement of 5 days of unpaid family and domestic violence leave. This change was introduced in the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022, and reflects one of the Australian Labour Party’s key workplace reforms.

Paid family and domestic violence leave

All employees, including part-time and casual employees, will be entitled to 10 days paid family and domestic violence leave in a 12-month period.

The amendment to family and domestic violence leave is a landmark decision with consideration to the provision of paid leave to casual employees. Tony Burke, Workplace Relations Minister, said:

“Normally we don’t give leave entitlements to casuals, but if you don’t on this, then a whole portion of the workforce is going to have to choose between their safety and their pay.”

Employees will have access to the 10 days of leave from the commencement of the legislation. The entitlement does not accumulate from year to year. Upon each employee’s work anniversary, the paid family and domestic violence leave balance resets.

Taking family and domestic violence leave

Family and domestic violence is defined as violent, threatening or abusive behaviour by an employee’s close relative, intimate partner or household member, that:

• seeks to coerce or control the employee; and
• causes them harm or fear.

A close relative is a member of an employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. This includes 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 an employee’s current or former spouse or de facto partner

Payment for family and domestic violence leave

Full-time and part-time employees are paid for this leave at their full pay rate for the hours that would have been worked if they were not on leave. Casual employees are paid at their full pay rate for hours they were rostered to work in the period the leave was taken.

The full pay rate includes:

• incentive-based payments and bonuses
• loadings
• monetary allowances
• overtime or penalty rates; and
• any other separately identifiable amounts.

Notice and evidence

When an employee seeks to take paid family and domestic violence leave, they must advise their employer as soon as possible. Employers can also request evidence to support the need to access such leave, which could reasonably include, but is not limited to, evidence from the Police, a Court, Doctor or Family Violence Support Service.

Communication

Employers should proactively communicate and advise employees of the new entitlement. Employees who are subjected to domestic and family violence are vulnerable and often unaware of the support and assistance that is available to them. An employer that openly discusses the support available to employees suffering from domestic and family violence, assists in removing the perceived stigma associated with it and helps reduce the reluctance of an employee.

Confidentiality

It is important that any details in relation to an employee accessing domestic and family violence leave are kept strictly confidential. Access to such documentation should be restricted and available on a “need to know” basis. In this way, the approach should be similar to how an employer treats confidential medical records.

Employers are required to keep a record of an employee’s family and domestic violence leave. However, care should be taken with creating payroll codes which may breach confidentiality. For example, the legislation specifically requires that pay slips make no mention of family and domestic violence leave.

Policy

Employers should consider whether to incorporate the legislative requirements into a company policy. This policy would operationalise the legislative entitlement and include organisationally appropriate processes to address notification of absence, evidence required, workplace safety and any additional support or assistance available.

As the new entitlement to 10 days of paid leave is prescribed by the NES, any less beneficial entitlements provided in a policy or an applicable industrial instrument, such as an Enterprise Agreement, will no longer apply. Employers should consider whether existing policy documentation needs updating or if Enterprise Agreement provisions need updating during the next round of bargaining to reflect the NES minimum.

Our consultants are continually monitoring the implementation of the amendments to the Fair Work Act 2009, and their implications. If you would like more information on the impact the Legislative Reforms might have on your organisation, please contact us here and a Mapien Workplace Strategist will be in touch ASAP.