New Paid Family and Domestic Violence Leave: What You Need to Know!

While women are overwhelmingly in the majority of victims of family and domestic violence, family and domestic violence can happen to anyone, including men and members of the LGBTIQ+ community. The perpetrators of family and domestic violence may be of the same or opposite gender as the victim.

This is a shocking reality, but through strong advocacy and awareness, we’re starting to see some action. Recently, new laws were introduced to support those affected by family and domestic violence in the workplace.

Every year, Australian employees are now entitled to 10 days of domestic violence, which has replaced the existing unpaid leave on offer for those affected by family and domestic violence.

The new leave legislation means that full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. Note that it’s not pro-rated for part-time or casual employees, and that the full 10-day leave entitlement will be available upfront and won’t accumulate from year to year if it’s not used.

Here are a few other things you need to know:

• The leave will be available from 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023).
• For small business employers (employers with less than 15 employees) employees will have access to the 10 days paid leave from 1 August 2023.
• From 1 February 2023, there are rules about information that must not be included on an employee’s pay slip relating to paid family and domestic violence leave.
• Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement.
• The new leave will be independently reviewed after 12 months to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.

When Can Employees Take Family and Domestic Violence Leave?

Employees (including part-time and casual employees) can take this paid leave if they need to do something to deal with the impact of family and domestic violence. This includes, for example:

• 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.

What is 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 or both” in a way that:

• seeks to coerce or control the employee
• causes them harm or fear.

A close relative is defined as an employee’s:

• spouse or former spouse
• de facto partner or former de facto partner
• child
• parent
• grandparent
• grandchild
• sibling

This also includes 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.

How is Payment Allocated for Family and Domestic Violence 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 if 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 separate identifiable amounts.

What are the Payslip Requirements Related to Family and Domestic Violence Leave?

From 1 February 2023, pay slips must not mention family and domestic violence leave, including any leave taken and leave balances.

This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave.

Notice and evidence requirements

If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started. An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence, and it’s not practical to do that outside their hours of work.

An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:

• the employee consents
• the employer is required to deal with the information by law, or
• it’s necessary to protect the life, health or safety of the employee or another person.

The employer can’t use the information for other purposes, including taking adverse action against the employee.

All other rules about notice and evidence are the same as the current rules for taking unpaid family and domestic violence leave.

How Can You Prepare for the Changes as a Small Business Owner?

For small business owners, this new obligation to provide 10 paid days of family and domestic leave per year may seem ominous. While it’s difficult to anticipate when and how often this entitlement may be claimed, it’s important to remember that the leave has been implemented (and is to be reviewed in 12 months’ time) to address the extreme vulnerability of victims of family and domestic violence.

When we look at how a business can budget or accommodate this leave entitlement, we recommend starting with the detail. For small business employers, the entitlement doesn’t start until 1 August 2023. We then need to remember that it’s only 10 days per annum, which is the equivalent of the amount of personal leave already provided to employees.

Employers who currently have employees managing family or domestic violence, they may well be using their personal leave to attend appointments. The introduction of the paid family and domestic violence leave will enable employees to take that leave rather than personal leave, which may see a reduction in personal leave use.

Crucially, where an employee needs to take domestic and family violence leave, as an employer this is an opportunity to provide the employee with support and referral to services which can further support them and to keep them safe. Research also shows that where employers actively engage with social issues fosters employee engagement which in turn sees better employee retention.

We should, therefore, view paid family and domestic violence leave as a step that employers take as part of a national approach to addressing family and domestic violence.

If you’re keen to better understand your obligations as an employer and the next steps as a business owner, feel free to reach out to one of our experienced employment lawyers for advice.