New Family and Domestic Violence Leave entitlements begin February 1

Following the passage of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (the Act) in November last year, 1 February 2023 marks the day many employees become entitled to ten days of paid leave for occasions where they need time off work to deal with the impact of family and domestic violence (FDV).

The new leave entitlement comes after the Federal Government announced it would be legislating a raft of measures to promote gender equality in workplaces across Australia. Paid FDV leave forms an integral part of these measures as family and domestic violence disproportionately affects women. Data shows that, in Australia, women are nearly three times more likely than men to experience violence from an intimate partner¹. FDV also comes at an estimated cost to business at over $600 million annually² due to absenteeism, decreased productivity, and the cost of rehiring and retraining employees should the victim-survivor employee leave the workforce.

The introduction of a paid leave entitlement for those experiencing FDV will provide employees with the time to address the impacts of FDV without worrying about the financial implications of taking unpaid time from work.

What are the new entitlements?

All employees, including casual employees, will be entitled to ten days of paid leave per year, replacing the previous entitlement to five days of unpaid leave.

This entitlement is available from 1 February 2023 for employees of large businesses (an employer with more than 15 employees), and from 1 August 2023 for employees of small businesses (an employer with fewer than 15 employees on 1 February 2023) to enable small businesses time to adapt their processes and systems to account for the change.

Who is entitled to take the leave?

The new paid entitlement operates in much the same way as the previous unpaid leave requirement – it is available to all employees who are experiencing family and domestic violence, and who need to do something to deal with the impacts of that family and domestic violence, that it is impractical for them to do outside of their work hours.

Family and domestic violence are defined in the Act as ‘violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee; and causes the employee harm or to be fearful’.

Examples given in the Act of circumstances an employee may be entitled to take FDV leave include arranging for the safety of themselves or a close relative (e.g. relocating), attending court hearings, or attending medical, legal, or financial appointments.

One pertinent change that has been made by the Act is to expand the definition of who may be a perpetrator of FDV for the purposes of taking this leave. Whereas previously the victim-survivor had to be experiencing FDV by a close relative or immediate family member, employees can now also access this leave if they are experiencing FDV by a member of the employee’s household, or a current or former intimate partner. This reflects the experiences of many Australians who have been victims of FDV and the diverse range of living arrangements in modern society.

How should the leave be paid?

Employees are entitled to take the leave at their full pay rate for the hours they would have worked if they had not been on leave. This will include any loadings, penalties, or allowances. For casual employees, employers should pay the leave at the full pay rate for hours they were rostered on for, but instead took FDV leave.

There are important pay slip requirements that employers must strictly adhere to regarding FDV leave. Pay slips must not mention FDV leave, including balances or leave taken. This is to safeguard employees where the perpetrators of violence may have access to information such as pay slips. Notwithstanding this, employers must keep a record of FDV leave taken and balances.

When do employees become entitled to the leave?

From 1 February 2023, employees (other than small business employees) will become entitled to the ten days paid leave immediately, the leave entitlement does not accrue and it is does not accumulate from year to year.

Importantly, the leave entitlement renews on the employee’s work anniversary, and not on 1 February each year. For example, if an employee received the ten day entitlement on the 1 February, but they were originally employed on 1 March 2022, they would receive 10 days of paid FDV leave on 1 February 2023, and their entitlement would renew on 1 March 2023, despite only 1 month having passed since first receiving the 10 day entitlement. Their ten day entitlement would then renew on 1 March each year.

What are the evidence requirements for taking the leave?

The notice and evidence requirements for accessing the new paid leave entitlement remain the same as the previous unpaid entitlement. The affected employee must let their employer know as soon as possible that they wish to take FDV leave, which can be after the leave has started.

Employers can request evidence that the employee needs to do something to deal with the impacts of FDV and it is not practical to do that outside of their hours of work. For example, this evidence could be information regarding court proceedings, evidence of a medical appointment, or a statutory declaration.

Any evidence collected by the employer must be kept strictly confidential – consider who needs to see the information and ensure no other employees will have access to it. Similarly, managers should be trained in how to address an employee’s absence whilst on FDV leave so they do not inadvertently disclose personal matters to other staff.

What else can employers do to help employees who are impacted by family and domestic violence?

The Commission has previously commented that ‘Employment is an important pathway out of violent relationships.’³ Paid FDV leave is one way employers can support employees by maintaining their financial security, but there are other means of providing additional support to employees during this time.

• Train managers and staff on how to notice warning signs that an employee may be a victim of FDV and on how to discuss their concerns with the affected employee.
• Review any policies you have around FDV or leave entitlements specific to dealing with FDV so they are reflective of the new changes, and ensure those policies are trickled down through all levels of the organisation. Additionally, ensure policies are not perpetuating myths about domestic violence, for example by insinuating domestic violence is an issue that mostly occurs in the home – we now know FDV can affect individuals anywhere, including in the workplace.
• Consider implementing personal safety plans for employees who have disclosed they are experiencing FDV. A personal safety plan is created in collaboration with the victim-survivor and can address issues such as what the employee is comfortable disclosing and to whom, or how to address an instance of someone calling or visiting the workplace and asking to speak with the employee.

NRA Legal has a dedicated Workplace Relations team who can help you to understand and apply these new entitlements. For assistance, you can contact us on 1800 RETAIL (738 245) and press option 1.