Paid Family and Domestic Violence Leave

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 was passed in both houses and received Royal Assent on the 9th of November 2022 and comes into effect on 1 February 2023 (or 1 August 2023 for small businesses with under 15 employees).

The amending Act changes the Fair Work Act 2009 (FW Act) by replacing the current entitlement of five days of unpaid leave with 10 days of employer paid family and domestic violence leave for eligible employees each year in the National Employment Standards (NES).

The entitlement to 10 days of paid family and domestic violence leave is available to employees of all types, including full-time, part-time, and casual employees, and will be available in full at the beginning of each 12-month period of the employee’s employment, but does not accumulate year to year.

Having been exposed to family and domestic violence (DV) at an early age myself, it offers a degree of hope to see an increased recognition of the devastating impact that DV has on people's lives. It's a small step, though a positive one, and one that also hopefully starts to normalise conversations about support and care for those experiencing issues at home.

So, what do you need to be aware of? Below is a quick run down of the basics. 

When is an Employee Entitled to Take the Leave?

The legislation will come into effect from 1st February 2023, at which time existing employees will receive an entitlement to 10 days of paid leave. Smaller employers (with less than 15 employees) start at the later date of 1st August 2023.

The entitlement to 10 days of paid leave would then reset on the anniversary of when an employee’s employment started.

For example, a national system employee who started employment with their employer on 11th October 2022 would gain ten days of paid family and domestic violence leave on 1st February 2023, and that entitlement would thereafter reset on 11th October each year of their employment with that employer.

There is no minimum employment period required for an employee to become entitled to the leave.

Key changes:

• Provide full-time, part-time, and casual employees access to 10 days of paid family and domestic violence leave at their full rate of pay for the hours they would have worked had they not taken the leave. For instance, a casual employee who takes a period of paid family and domestic violence leave will be paid at the employee’s full rate of pay worked, as if the employee had worked the hours in the period for which the employee was rostered.
• 10 days of paid family and domestic violence leave will be available in full at the beginning of each 12 month period of the employee’s employment but does not accumulate year to year.
• An extension to the definition of family and domestic violence to include the conduct of a current or former intimate partner of an employee or a member of an employee’s household.

Note: Full rate of pay is defined in section 18 of the Fair Work Act. The rate of pay payable to the employee includes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts. The intention is that employees taking paid family and domestic violence leave will receive the same remuneration they would have received had they not taken the leave, as far as possible.

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

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 during their work hours.

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.

When Does Evidence Have to be Given?

The notice and evidence requirements that would apply to paid family and domestic violence leave are consistent with those already provided for in the Fair Work Act in respect of other leave entitlements, including unpaid family and domestic violence leave.

An employer may ask an employee to provide evidence that would satisfy a reasonable person of the employee’s need to take paid family and domestic violence leave.

Evidence may include, but is not limited to:

• Documents issued by police or the court.
• Family violence support service documents.
• Statutory declarations.

Failure to comply with an employer’s request to provide evidence may result in the employee being deemed ineligible for paid family and domestic violence leave.

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.
• Any other separately identifiable amounts.

Interaction With Other Paid Leave

An employee can use paid family and domestic violence leave during a period of paid personal/carers 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 employer the required notice and evidence.

If You Don’t Comply

Non-compliance with the proposed paid family and domestic violence leave provisions will give rise to breaches of the civil remedy provisions under Part 4-1 of the Fair Work Act, exposing employers and individuals such as managers, to significant monetary penalties and other court orders.

Help:

If you or someone you know is impacted by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732 or www.1800respect.org.au

Sources:

• New paid family and domestic violence leave – Fair Work Ombudsman
• Universal paid leave for family and domestic violence | Department of Social Services Ministers (dss.gov.au)

My Story:

I shared my experience with domestic violence, and how it has driven the 'Why' behind my business, recently with Rob Marshall on his podcast - 'The Heart of the Bookkeeper'. Listen here - https://www.bookwizacademy.com/blog/heart-of-the-bookkeeper-with-rob-marshall