New laws to provide ten days of paid family and domestic violence (FDV) leave came into force on 1 February 2023 for workers in businesses with 15 or more employees. For workers in small businesses (fewer than 15 employees) the entitlement will start from 1 August 2023. These workers can continue to access the current five-day unpaid FDV leave entitlement in the interim.
All employees – full-time, part-time and casuals – will be entitled to ten days of paid FDV leave in a 12-month period. This new entitlement replaces the existing entitlement to five days of unpaid FDV leave under the National Employment Standards.
The paid FDV leave entitlement operates differently from other leave entitlements (such as annual leave and personal / carer’s leave). Consequently, there are several aspects employers should be aware of when a request for FDV leave is made.
How an employee becomes entitled to take FDV leave
Employees are entitled to the full ten days of paid FDV leave upfront and are not required to accumulate the leave over time. The leave renews every year on the employee's work anniversary and does not accumulate from year to year. Consequently, an employee’s FDV leave balance will never be greater than ten days.
When leave can be taken
Employees can take paid FDV leave if they need to do something to deal with the impact of family and domestic violence.
"Family and domestic violence" means violent, threatening or other abusive behaviour by a close relative, a member of an employee’s household, or a current or former intimate partner of an employee that:
seeks to coerce or control the employee; and
causes the employee harm or to be fearful.
For example, the employee may take FDV leave if they need to:
make arrangements for their safety, or the safety of a close relative (including relocation);
attend court hearings or counselling;
access police services; or
attend appointments with medical, financial or legal professionals.
If an employee takes FDV leave, they have to let their employer know as soon as possible. This could be after the leave has started.
Evidence requirements
Family and domestic violence can be a sensitive topic. However, an employer is within their rights to request evidence that would satisfy a reasonable person of the employee’s need to take FDV leave.
Evidence may include:
documents issued by police or the court;
family violence support service documents; or
statutory declarations.
Employers can only use this information to satisfy themselves that the employee is entitled to FDV leave. Employers must treat this information confidentially.
Payment for leave and pay slip requirements
Full-time and part-time employees must be paid FDV leave at their full pay rate for the hours they would have worked if they weren't on leave. Casual employees must be paid at their full pay rate for the hours they were rostered to work in the period they took leave.
Employers need to keep a record of leave balances and any leave taken by employees. However, pay slips must not mention FDV leave, including any leave taken and leave balances. This is to reduce the risk to an employee’s safety when accessing paid FDV leave.
Steps for implementation and compliance
Employers must ensure they comply with the new laws and provide the enhanced benefits to relevant employees by:
educating and training managers on the content of the new laws and how to deal with applications for FDV leave;
reviewing and updating systems, policies and procedures to ensure compliance; and
communicating the relevant changes to employees.
The Employment Law team at Sladen Legal can help you understand and comply with these new laws.
For more information please contact:
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Eliza Millen
Lawyer
T +61 3 9611 0177
E: emillen@sladen.com.au
