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Updates to Paid Family and Domestic Violence Leave
Australian employers will be required to recognise paid leave for domestic and family violence for all employees (including casuals).
In this blog, we explore the changes that will soon commence and obligations on employers surrounding recognition of paid domestic and family violence leave.
What is domestic and family violence defined currently as?
First it’s necessary to understand what the Fair Work Act (FWA) currently (as at 31 January 2023) recognises as family and domestic violence.
In summary, the FWA provides that family and domestic violence is any violence or threatening or abusive behaviour by an employee’s close relative that seeks to coerce or control the employee and causes them harm or fear.
The FWA defines “close relative” as:
- An employee’s spouse, former spouse, defacto partner, former defacto partner, child, parent, grandparent, or sibling.
- An employee’s current or former spouse or defacto partner’s child, parent, grandparent, grandchild, or sibling.
- A person related to the employee according to Aboriginal or Torres Strait Islander Kinship rules.
What is the current requirement?
Currently, full time, part time and casual employees are entitled to 5 days of unpaid leave for family and domestic violence.
What is changing?
From 1 February 2023, employers (other than Small Business Employers) will be required to recognise 10 paid days of family and domestic violence leave for all employees. This extends to casual employees and:
- It is not to be pro-ratad for part time employees.
- All employees have access to the full 10 days upfront regardless of period of service and it will not accumulate each year but instead will reset each year of the employment.
Small Business employers will have until 1 August 2023 before they too must recognise the 10 days paid family and domestic violence leave.
The definition of family violence will also change so that it is not just limited to the employee’s close relative but also extends to any violence or threatening or abusive behaviour by an employee’s “current or former intimate partner, or a member of their household”.
When can the leave be requested?
Employees are entitled to take this leave if they need to do something to deal with the impact of family and domestic violence and it is impractical to do so outside their ordinary hours of work. As an example only, if an employee needs to access police services or make arrangements for their own safety (such as relocate to another dwelling).
For the sole purpose of being satisfied that the employee is entitled to take the paid family and domestic violence leave, employers can request reasonable evidence from the employee. That evidence may include (for example) documents issued by the police, a court or a statutory declaration from the employee.
How do you record the employee is taking paid family and domestic violence leave?
The changes to be introduced on 1 February 2023 also include obligations with respect to information that employers must exclude from pay slips.
Those obligations include that an employer is prohibited from including information that shows:
- An amount which is for paid family and domestic violence.
- Leave was taken as paid family and domestic violence leave.
- The balance of paid family and domestic violence leave.
In addition to the above, employers must not disclose to others the fact that the employee is taking this leave unless disclosure is authorised by the employee, by law or it is necessary to protect the life, health or safety of an employee or other person.
This will therefore require employers to take care when identifying to other employees that a person is absent as there must be no reference to the fact that the employee is taking family and domestic violence leave.
Failure to comply with the above requirements will result in penalties being imposed for a breach of the FWA to include any such information in a pay slip.
Where to from here?
There are a number of changes from the current position as can be seen above. It will be necessary for employers to review their policies regarding the taking of leave to ensure they address this leave and any evidence required by the employer for the taking of the leave.
Employers must also now take steps to ensure their payslips comply with these new requirements surrounding details to be excluded from payslips and confidentiality surrounding notice of staff absences to other employees.
If you need help getting your policies and procedures in order for this new change, then we’re happy to provide you some guidance.
