New Entitlement – Paid Family and Domestic Violence Leave

14 February 2023

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) (Act) was approved on 9 November 2022. In short, the Act amends the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) to provide employees with an entitlement to 10 days of paid family and domestic violence leave per year.  We provide details of this new entitlement below for your information. You can read our previous alert on the matter here.

When do the Act’s provisions commence?

For employers with 15 or more employees, the Act’s provisions commenced on 1 February 2023. For small business employers (those with less than 15 employees), the Act’s provisions commence from 1 August 2023.

Summary of new entitlements

Paid family and domestic violence leave

  • Under the Act, 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 that both seeks to coerce or control the employee or causes them harm or fear. We encourage you to contact our office for advice in relation to situations if in doubt.
  • Full-time, part-time, and casual employees will be able to access ten (10) days of paid family and domestic violence leave in a twelve (12) month period.
  • The new entitlement will replace the existing entitlement to five (5) days of unpaid family and domestic violence leave under the National Employment Standards (NES).
  • The entitlement to paid leave won’t be pro-rated for part-time or casual employees.
  • The full 10-day leave entitlement will be available upfront.
  • Employees can take this paid leave if they need to do something to deal with the impact of family and domestic violence. Examples of situations where an employee may be approved this leave include making arrangements for their safety, or the safety of a close relative (including relocation), attending court, accessing police services, attending counselling and attending medical, financial or legal professionals’ appointments.
  • The leave renews every year on each employee’s work anniversary. It does not accumulate from year to year if the entitlement is unused.

Notice and evidence requirements

  • If an employee takes paid family and domestic violence leave, they are required to notify their employer as soon as possible. This could be after the leave has started.
  • Employers can ask an employee for evidence to show that:
    • a.  the employee needs to do something to deal with family and domestic violence; and
    • b. it is not practical to do that outside their hours of work.
  • An employer can only use information obtained from the employee  to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:
    • a. the employee consents;
    • b. the employer is required to deal with the information by law; or
    • c. it is necessary to protect the life, health or safety of the employee or another person.
  • The employer cannot use the information for other purposes, including to take adverse action against the employee.
  • Employers can also ask an employee for evidence that shows the employee took the leave to deal with family and domestic violence. If the employee does not provide the requested evidence, family and domestic violence leave may be refused. Examples of evidence may include Police or Court issued documents, a statutory declaration, hospital records, or family violence support service documents.
  • It is important for employers to take reasonably practicable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide.
  • Employers are not prevented from disclosing information if it is required by law or it is necessary to protect the life, health or safety of the employee or another person.

Pay slip requirements

  • 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. This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave.
  • Employers need to keep a record of leave balances and any leave taken by employees. However, pay slips must not mention family and domestic violence leave, including any leave taken and leave balances.

Employers should take action now to review their workplace policies and set up relevant payroll practices. EMA Legal can assist employers with all queries relating to this new entitlement.

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This Newsletter is made available to our clients and interested parties to provide immediate access to information about important changes and developments relevant to employers. The information contained in this publication should not be relied on as legal advice and should not be treated as a substitute for detailed advice that takes into account particular situations and the particular circumstances of your business.