This is an update to our blog ‘Family Violence: accommodating victims through modern awards’.
New laws providing employees with 10 days of paid family and domestic violence leave have recently been introduced under the Fair Work Act 2009 (Cth).
These new leave entitlements are available:
- on and from 1 February 2023 for employees of non-small business employers (employers with 15 or more employees on 1 February 2023)
- on and from 1 August 2023 for employees of small business employers (employers with less than 15 employees on 1 February 2023).
Please note that until the laws come into place for employees of small business employers, employees can continue to take up to 5 days unpaid family and domestic violence leave under pre-existing laws and industrial agreements.
How does an employee take family and domestic violence leave?
Employees must be experiencing family and domestic violence in order to be eligible to take paid family and domestic violence leave. Both part-time and full-time employees may take the 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 of work hours. This may include:
- making safety arrangements for themselves or a close relative (i.e. child/ren, spouse or former spouse, defacto partner or former defacto partner, parent, grandparent, grandchild, sibling, or a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules)
- attending counselling
- attending appointments with medical, financial or legal professionals
- attending Court
- accessing police services
Employers are able to ask their employee for evidence that shows that the employee took the leave to deal with family and domestic violence. Evidence might include:
- statutory declarations
- police documents
- court documents
- family violence support service documents
Does the leave renew or accrue?
Family and domestic violence leave:
a. is not subject to accrual, meaning that eligible employees can access the full 10 days of leave at any time; and
b. renews on the employee’s work anniversary and is not carried over into the following period if unused, unlike annual leave and personal leave for part time and full-time employees.
How do I pay my employee for taking family and domestic violence leave?
You should pay your employee (including casual employees) their full rate of pay for the hours that they would have performed had they not taken leave. This is inclusive of any loadings, allowances, overtime or penalty rates and incentive based payments typically paid to the employee.
As an employer, you must take reasonable steps to ensure your employee’s safety and confidentiality relating to any information about the family and domestic violence disclosed by the employee.
In order to assist with this, employers should not describe the leave on the employee’s payslip as family and domestic violence leave, but as ordinary hours of work or another kind of payment such as an allowance unless specifically consented to by the employee or is required by law.
If you require assistance with leave entitlements, please contact any of our offices.
MORGAN COUZENS LEGAL
If you or someone you know is experiencing or is at risk of experiencing family, domestic or sexual violence, please call 1800 RESPECT on 1800 737 732 or visit 1800respect.org.au
