In Australia, family and domestic violence is a serious health, welfare, and social issue that negatively impacts many Australians. The Australian Government’s Australian Institute of Health and Welfare reported in November 2022 that 2.2 million Australians have suffered physical or sexual violence from their current or previous partners.
As an employer, you should be aware that family and domestic violence could affect your employees. To assist those who are impacted by family and domestic violence, employers will soon be required to provide their employees who are impacted by family and domestic violence with 10 days of paid family and domestic violence leave.
These new laws were introduced under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 amended the Fair Work Act 2009 in order to replace the existing National Employment Standards’ entitlement of five unpaid leave days for family or domestic violence.
The changes to the law also benefit employees by expanding the definition of family and domestic violence to include the actions of an employee’s current or former partner, or a member of the employee’s household.
As an employer or an employee, there’s a lot to get your head around with the introduction of paid family and domestic violence leave, but don’t stress we have you covered!
In this article, we’ll explain what family and domestic violence is, who the new laws will apply to, what employers have to do to respond to the legislative changes, when the new laws will begin to apply, and answers to other frequently asked questions.
Read along!
What is Family and Domestic Violence?
The new laws define family and domestic violence as violent, threatening, or abusive behaviour that is directed at an employee by their former or current intimate partner, a member of their household, or a close relative in order to coerce or control them or cause fear or harm to them. An employee’s close relative can include the following:
- Siblings
- Grandchildren
- Current or former spouse
- Current or former de facto partner
- Children
- Grandparents
- Parents
- The siblings, children, parents, or grandparents of an employee’s existing or former partner
- An individual who’s related to the employee in accordance with kinship rules governing Aboriginals or Torres Strait Islanders
Examples of family and domestic violence include the following types of behaviour:
- Financial abuse
- Stalking
- Emotional abuse
- Sexual assault
- Physical violence
- Controlling behaviour
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Who will the new laws to Paid Family and Domestic Violence Leave apply to?
The new laws and the entitlement to ten days of paid domestic and family violence leave will be provided to all employees who are covered by the Fair Work System, including full-time, part-time, and casual employees. The ten days of paid family and domestic violence will be provided for every 12-month period of an employee’s employment. It will be provided up-front at the start of each 12-month period. Therefore, it doesn’t have to accumulate, unlike other types of leave entitlements such as annual leave.
It’s important to note that any of the 10 days of paid family and domestic violence leave that isn’t used within a 12-month employment period will not carry over to the next 12-month employment period. Furthermore, the leave won’t be pro-rated for casual or part-time employees, so they will be entitled to the 10 days regardless of how many days they work during their 12-month employment period.
When do the new laws to Paid Family and Domestic Violence Leave begin to apply?
The new laws will begin to apply on two different dates depending on the size of a business. For non-small businesses, that refer to businesses that have at least 15 employees, the new laws will begin to apply on the 1st of February 2023.
If you’re an employer of a small business, you have a bit more time before the new laws begin to apply to your business. For small businesses, which are businesses that have less than 15 employees, the new laws will begin to apply on the 1st of August 2023.
What do employers have to do in response to the new changes to Paid Family and Domestic Violence Leave laws?
Companies should make the 10 days of paid leave available to all staff through their usual leave channels.
One way to ensure compliance with the legislation is to have a compliant family and domestic violence leave policy. You can use our family and domestic violence leave policy template to get started. Employers who already have such policies should update their family and domestic violence leave policies to reflect the changes to paid family domestic violence leave.
What do employers have to include in an employee’s payslip when they take paid family and domestic violence leave?
As an employer, you should be aware that when the new laws begin to apply that you can’t include any information regarding paid family and domestic violence on employees’ pay slips. The purpose of this rule is to minimise any risk to an employee’s health or safety when they’re taking paid family or domestic violence leave.
As an employer, you’ll be required to maintain a record of how much leave your employees have taken and how much leave they have remaining. Nevertheless, an employee’s pay slip can’t disclose how much paid family and domestic violence leave they have taken and how much of this type of leave they have remaining under any circumstance.
What obligations do employees have when they take paid family and domestic violence leave?
Employees can notify employers after the leave has been taken or during their leave. You should provide your employer with sufficient evidence as soon as possible to prove that you are taking the leave for a purpose provided by the legislation, as outlined in the next section. Employers can ask employees to provide evidence that they’re taking family and domestic violence leave for such purposes.
The information you provide your employer must only be used by your employer for them to determine that you are entitled to and using family and domestic violence leave for legitimate purposes. However, this information can be used for other purposes in the following situations:
- If you provide your employer with consent to use the information for other purposes
- If under law, the employer is required to use the information for another purpose
- If the employer uses the information for other purposes to ensure the protection of your life, safety or health or the life, health and safety of another individual
What purposes can the family and domestic violence leave be used for?
Employees can use paid family and domestic violence leave when they’re required to perform a task or activity to cope with the effects of family and domestic violence they are experiencing, and this task can’t be reasonably completed during work hours. Tasks or activities an employee may undertake include the following:
- Relocating to create distance between themselves and the person who is harming them
- Taking steps to ensure their safety, or that of a close relative impacted by the family and domestic violence
- Participating in court proceedings
- Getting in touch with the police and accessing their services
- Participating in counselling sessions
- Attending medical appointments
- Consultations with financial professionals
- Visiting legal professionals for consultations
How much pay do employees receive during paid Family and Domestic Violence Leave under the new laws?
The pay an employee receives whilst taking paid family and domestic violence depends on their type of employment. Part-time and full-time employees will receive paid family and domestic violence leave at their full rate of pay for the hours they would have worked if they didn’t have to take family and domestic violence leave.
Casual employees will also be paid their full pay rate for any hours they were scheduled to work but couldn’t due to having to take family and domestic violence leave.
What is the renewal process for paid family and domestic violence leave?
An employee’s paid family and domestic violence leave renews annually on their work anniversary. New employees who begin their employment after the paid leave entitlement becomes available are entitled to the full 10 days of paid family and domestic violence leave from the day they start their jobs workplace. As soon as they reach their work anniversary, their leave will renew.
For employees who are already employed, they will be entitled to 10 days of paid family and domestic violence leave on the relevant start date that depends on the size of the business they’re working for. However, their renewal date will not be on the anniversary of the date the entitlement begins to apply. Instead, it will renew on their work anniversary, which is the date they began working for their current employer.
Conclusion
Ultimately, as an employer, you’ll soon be required to provide all your employees with 10 days of paid family, and domestic violence leave instead of 5 days of unpaid family and domestic violence leave. For larger businesses with more than 15 employees, this change will commence on the 1st of February 2023, and for small businesses, this change will commence on the 1st of August 2023.
As an employer, you should update your Family and Domestic Violence Leave Policy according to the size of your business soon. If you’re still feeling unsure about your obligations due to the changes in family and domestic violence leave, you should hire a lawyer to avoid legal consequences.
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