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Risky Business: Paid Family and Domestic Violence Leave

Paid Family and Domestic Violence Leave

Daleen Van Der Merwe and Stephany Dobbelstein

In this article we highlight the changes of leave entitlements for all employees dealing with family and domestic violence, and cover the risks associated with not adhering to all obligations. 

What is the Risk?

In May 2023, the Federal Government introduced legislation to amend the Fair Work Act 2009 (Cth) to provide for ten days of paid family and domestic violence leave in the National Employment Standards (NES).
The Fair Work Commission ruled the leave should be paid to employees to maintain their employment and financial security while dealing with the effects of family and domestic violence. If it is not paid, employees would be less inclined to take it, resulting in the inability to relocate, attend court proceedings, or obtain medical treatment or other forms of support, which may inhibit them from leaving violent relationships.
Businesses not adhering to the Fair Work Act and National Employment Standards may have penalties applied by Fair Work.

How can you identify and assess the risk?

All employers need to understand the family and domestic violence leave entitlements and the obligation to ensure a confidential process for employees applying for this type of leave.
Family and domestic violence means violent, threatening, or other abusive behaviour by certain individuals known to an employee that:

  • seeks to coerce or control them, and
  • cause them harm or fear.
This new paid entitlement commenced on 1 February 2023, or 1 August 2023 for small businesses with less than 15 employees as of 1 February 2023.
All employees, full-time, part-time and casual, will have access to the entitled ten days of paid leave in a 12-month period. This replaces the existing entitlement in the NES of five days unpaid family and domestic violence leave.
Leave is to be paid at the employee’s full rate of pay for the hours they would have worked had they not taken the leave.  The employee’s paid leave entitlement is available in full immediately and resets on their work anniversary. The new leave entitlement does not accumulate from year to year.
Paid family and domestic violence leave is a standalone leave entitlement, and it is separate from other types of leave, such as annual leave, paid sick and carer’s leave. Employees must be experiencing family and domestic violence to be eligible to take paid family and domestic violence leave.
How does the employee access this leave?
To access paid family and domestic violence leave, the individual could be:
  • An employee’s close relative:
    • Spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild or sibling. 
    • An employee's current or former spouse or de facto partner's child, parent, grandparent, grandchild or sibling.
    • A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
  • A member of an employee's household.
  • A current or former intimate partner of an employee.
Employees can use their new leave entitlement if they need to do something to deal with the impact of family domestic violence and it’s not practical for them to do so outside of their work hours.
For example, the employee might need to:
  • Make arrangements for their safety, or the safety of a close relative.
  • Attend a court hearing.
  • Access police services.
  • Attend counseling sessions.
  • Meet with medical, financial or legal professionals.
 Businesses need to have confidential processes in place such as:
  • ensuring wages paid to an employee for family and domestic leave are not reported on a payslip.  Instead, it must be reported as an amount paid to the employee for ordinary hours of work or another kind of payment in relation to the performance of the employee’s work, such as an allowance, bonus or payment of overtime.
  • Assessing who is critical to the process, eg: a HR representative and/or a Payroll Manager.  And ensure that whoever is privy to this information have specific training and understand their privacy responsibilities and how to support employees.
How can a Moore Advisor help?

We can help you review and update your documents (contracts/policies and procedures), provide you with templates and even assist you with navigating conversations and requesting evidence within the legal framework. We can provide training to your Managers and Payroll administrators on how to deal with family and domestic violence leave requests.