Paid Domestic and Family Violence Leave

The Federal Government has introduced the new entitlement “Paid Domestic and Family Violence Leave” for all employees covered by the Fair Work Act 2009. This new entitlement will be available to employees on the following dates:

• 1 February 2023 – for employees of “non-small businesses” (employers with 15 or more employees)
• 1 August 2023 – for employees of “small businesses” (employers with fewer than 15 employees)

These entitlements are available to all classes of employees – full time, part-time, and casual. The leave is not accrued, or accumulated from year to year, but instead is similar to “compassionate leave” in that the entire amount is available immediately from the dates specified above if they meet the qualification criteria. However, no employee is entitled to take more than 10 days per annum in paid Domestic and Family Violence Leave in any year.

This entitlement to 10 days per annum then renews on the above dates (for existing employees) or on the anniversary dates of employment for those staff employed after the commencement of the entitlement.

The Fair Work Ombudsman has advised that the leave may be taken in the following circumstances:

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 is an employee’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, or sibling
• a child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de fact partner, or
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

There are also rules that state that an employer must not state on an employee’s pay slip that they were paid for “Family & Domestic Violence Leave”. It is acceptable to record such leave as “Paid Leave” on payslips. Please remember however that you are obliged to keep a record in your payroll system of the nature of leave taken, the length of the leave taken, and the remaining balance of leave available.

Evidence Requirements

When granting leave an employer can request evidence of the need for family and domestic violence leave, and the evidence must convince a reasonable person that the leave was taken for that purpose. Documents, such as police and court documents or a statutory declaration, are examples of what an employer may accept. An employer can request evidence for as little as one day of leave.

Confidentiality

Employers must take reasonable steps to maintain the confidentiality of information about an employee’s situation when it is provided for the purpose of family and domestic violence leave. The employer may only disclose the information if required by law or necessary to protect the life, health, or safety of the employee or another person. Employers should be aware that such information is sensitive and mishandling it could have adverse consequences for the employee. Employers should work with the employee to agree on how the information will be handled.

Payment For Leave

Finally, payment for the leave is calculated at what the employee would have received if they had worked the shift. This means that all shift penalties, weekend penalty rates, allowances, regular overtime and other such payments must be included when paying an employee during such leave. This is not like Personal/Carer’s Leave which is paid at the base rate of pay. Ensure that you adjust your payroll system to account for this difference.

As stated above, casual employees are also entitled to paid leave in these circumstances, but they are only entitled to be paid for a rostered shift they have missed due to the need to take the leave. They cannot request to be paid “10 days pay” if they were only rostered to work two shifts in a fortnight.