Written by Lucy Diggle and Principal, Jennifer Tutty.
Per the National Employment Standards (NES), all employees under the Fair Work System will now be entitled to 10 days of paid family and domestic violence leave for every 12-month period of employment.
The changes come following the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Amending Act) which replaces the previous entitlement of 5 days unpaid leave.
These developments echo nationwide calls for the government to implement legislation that recognises the continued prevalence of domestic violence. Critically, this includes the responsibility of employers to accommodate victims and survivors in their workforce so that victims do not have to choose between their safety and their pay.
Who is eligible?
The changes apply to all full-time, part-time and casual employees. Across the states and territories, key exceptions include certain state public sector employees. Further exceptions apply to certain businesses in Western Australia.
Full-time and part-time employees will benefit from their full rate of pay. Casual employees can access their leave at the full rate of pay for the rostered hours they are unable to work due to taking the leave.
When do the changes occur?
The changes have already commenced for businesses with 15 or more employees (as of 1 February 2023) and will begin on 1 August 2023 for businesses with fewer than 15 employees.
Important details for employees:
How is the leave managed year to year?
The 10 days leave will be available to employees upfront each year. If the leave is not used, it will not accumulate.
What constitutes ‘family and domestic violence’ ?
Under the Fair Work Act 2009 (Cth) (Act), family and domestic violence comprises violent, threatening, or abusive behaviour that seeks to coerce, control, cause harm or cause the individual to be fearful.
The previous definition in the Act only captured behaviour carried out by a member of the employee’s immediate family (or related by kinship rules). The Amending Act has expanded the definition to include a member of the employee’s household (eg. a flat mate) or a current or previous intimate partner (eg. an ex-boyfriend or girlfriend).
Important details for employers:
Notice and evidence requirements
Employers can require employees to provide notice as well as evidence to support a request for family and domestic violence leave. Examples of evidence can include:
– Police documents
– Correspondence from family violence support services
– Court documents
– Medical records
Workplace use of an employee’s information concerning domestic and family violence
Employers are prohibited from labelling any family and domestic violence leave on a payslip.
Additionally, employers can only use the information requested for the purpose of determining the employee’s entitlement for family and domestic violence leave.
This protects employees who may be fearful that their workplace may reconsider their employment in the future because of this information.
Existing domestic violence provisions in contracts or workplace policies
Some workplaces may already have agreements between employees and employers, or workplace policies in action that cover domestic violence, including associated leave entitlements.
In these circumstances, if the period of leave entitlement in an existing agreement is less than the minimum entitlement under the NES (10 days), the NES entitlement will apply.
A NOTE TO READERS:
If you or someone close to you is experiencing sexual abuse or family violence, we recommend you consult the following resources below
– 1800 737 732 (1800 RESPECT) – National Sexual Assault, Domestic Violence Counselling Service (24-hour hotline)
– 1800 800 588 – Emergency Accommodation helpline (24-hour hotline)
– 13 11 14 – Lifeline (24-hour hotline)
Further Information
If you would like assistance with an employment law matter, please contact us through our online form or at hello@studiolegal.com.au.
Published 3 February 2023.
Written by Lucy Diggle and Principal, Jennifer Tutty.
Photo by Annie Spratt on Unsplash.
DISCLAIMER
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.