Millions of Australian employees will become entitled to 10 days paid family and domestic violence leave in 2023. On 27 October 2022, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) was passed by Federal Parliament.
The new paid family and domestic violence leave will come into effect on 1 February 2023 for employers with more than 15 employees and on 1 August 2023 for employers with less than 15 employees.
These changes are a substantial improvement to workplace rights and entitlements for employees exposed to coercive control and/or harm through family and domestic violence. Prior to the changes taking effect, the National Employment Standards provided employees with the entitlement to 5 days unpaid family and domestic violence leave, which was introduced to the Fair Work Act 2009 (Cth) (the FW Act) on 12 December 2018.
What family and domestic violence leave changes will be made to the Fair Work Act?
The FW Act will include the following changes:
- Increasing the family and domestic violence leave entitlement from 5 unpaid days to 10 paid days in a 12-month period for all employees covered by the FW Act;
- Expanding the types of employees entitled to paid family and domestic violence leave to include casual employees;
- Expanding the definition of family and domestic violence to include conduct of a current or former intimate partner of an employee or a member of an employee's household;
- Extending the entitlement to paid family and domestic violence leave to include non-national system employees when the International Labour Organization Convention on Violence Harassment (No. 190) comes into force in Australia; and
- Ensuring that any information about the use of family and domestic violence leave is not included on an employee's pay slip to reduce the risk to an employee's safety.
As noted, these changes will come into effect on:
- 1 February 2023 for employers with more than 15 employees; and
- 1 August 2023 for employers with less than 15 employees.
Employees will still be able to access the current entitlement of 5 days unpaid leave until the relevant date of entitlement to paid family and domestic violence leave becomes available.
How is family and domestic violence defined in the Fair Work Act?
Under the new provisions of the FW Act, family and domestic violence is violent and threatening or other abusive behaviour by a close relative, a member of an employee's household, or a current or former intimate partner of an employee that:
- seeks to coerce or control the employee; and
- causes the employee harm or to be fearful.
A close relative of the employee is a person who:
- is a member of the employee's immediate family; or
- is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Who is entitled to paid family and domestic violence leave?
All employees, including full-time, part-time and casual employees, will be entitled to access the full 10 days paid family and domestic violence leave upfront from:
- the relevant date that the entitlement becomes available for existing employees; or
- their first day of work for employees that start on or after the relevant date the paid leave entitlement becomes available.
When can family and domestic violence leave be taken?
An employee will be entitled to take paid family and domestic violence leave if:
- they are experiencing family and domestic violence;
- they need to do something to deal with the impact of the family and domestic violence. For example, making arrangements for the safety of themselves or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals; and
- it is impractical for them to do that thing outside their work hours.
What rate is family and domestic violence leave to be paid?
Employees (other than casual employees) will be entitled to be paid family and domestic violence leave at their full rate of pay for the hours they would have worked had the employee not taken the leave.
Casual employees will be entitled to be paid family and domestic violence leave at their full rate of pay for the hours they were rostered to work.
Does family and domestic violence leave accumulate?
Paid family and domestic violence leave will not accumulate from year to year if it is not used. However, the full entitlement of 10 days will be renewed on the employee's anniversary of when they started work.
Can family and domestic violence leave be accessed while on other forms of leave?
An employee is entitled to access paid family and domestic violence leave while they are on annual leave or personal/carer's leave. In such circumstances, the leave will be taken as family and domestic violence leave rather than annual leave or personal/carer's leave.
Is notice and evidence required for family and domestic violence leave?
An employee must notify their employer that they are taking family and domestic leave as soon as practicable, which may be a time after the leave has started. When notifying their employer that they are taking family and domestic violence leave, an employee is required to advise the employer of the period, or expected period, of the leave.
An employer may ask an employee to provide evidence that would satisfy a reasonable person to demonstrate that the employee:
- is experiencing family and domestic violence;
- needs to do something to deal with the impact of the family and domestic violence; and
- it is impractical to do that thing outside their work hours.
If an employer requires evidence to be provided, then the employee must comply to be able to access paid family and domestic violence leave.
Examples of the type of evidence that can be provided may include:
- documents issued by police, a court or family violence support service;
- an appointment confirmation letter from medical, financial or legal professionals; or
- a statutory declaration.
Employers must take steps to ensure that information concerning any notice or evidence given by an employee in relation to a request for family and domestic violence leave is treated confidentially, as far as it is reasonably practicable to do so.
An employer is not permitted to use this information for any other purpose other than to satisfy itself in relation to the employee's entitlement to family and domestic violence leave, including using the information to take adverse action against an employee.
An employer, however, may disclose the information provided by the employee if the disclosure is:
- required by Australian law; or
- necessary to protect the life, health or safety of the employee or another person.
What if the employer does not comply with the family and domestic violence leave provisions?
If an employer does not comply with the FW Act provisions, then they may be contravening the FW Act and be liable for the imposition of significant monetary penalties. Any persons involved in the contravention, such as an HR employee or manager, may also be liable for the breach and the imposition of monetary penalties.
If the employee is subject to adverse action, such as termination, loss of shifts, lost income, the employee may also have a remedy to seek penalties and compensation for a breach of s.340 of the FW Act as family and domestic violence leave is a workplace right.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
