Currently the Fair Work Act 2009 and the National Employment Standards (NES) provide for 5 days of unpaid family and domestic violence leave to employees each year. Recent legislative amendments will increase the leave for all full-time, part-time and casual employees to 10 days of paid family and domestic violence leave in a 12 month period. The leave does not accumulate if not taken and does not need to be accrued (ie – it is available upfront). The leave entitlement is not pro-rated for part-time and casual employees; those employees are entitled to 10 days leave, but will only be paid for days/hours they were rostered on.
When do the changes commence?
The changes come into effect on 1 February 2023. For small business employers with less than 15 employees on 1 February 2023, the changes will take effect on 1 August 2023.
Small business employees can still access the 5 days unpaid family and domestic violence leave until the new paid leave entitlement becomes available to them.
When can an employee access paid family and domestic violence leave?
This type of leave is available in circumstances where the employee is experiencing family and domestic violence, which is behaviour by the employee’s close relative, spouse or de facto that seeks to coerce or control and that causes the employee harm or fear. The recent legislative amendments provide that it will now also include abusive behaviour by the employee’s current or former partner or a member of their household.
Employees are able to use paid family and domestic violence leave for activities that they cannot reasonably perform out of work hours. This might include arranging for their own safety or that of a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.
Employees must give notice to their employer when they use family and domestic violence leave as soon as practicable; in some circumstances this may be after the leave has commenced. Employees also need to tell their employer how long they expect the leave to last. The employer can request evidence the employee is experiencing family and domestic violence and that evidence must satisfy a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.
Employers must take reasonable steps to keep information about the employee’s situation confidential, including that the employee is taking this type of leave and any evidence they provide.
From 1 February 2023, employers cannot include any details of family and domestic violence leave on payslips, though they must keep a record of leave balances and any leave taken by employees. Breaches of the relevant provisions may constitute a civil offence under the Fair Work Act, incurring significant fines.
Employers should ensure they have policies in place for managing the new paid family and domestic violence leave, including in respect to payroll and handling confidential information.
It can be difficult to keep up with legislative changes that impact your business. If you need assistance, call the team of employment lawyers at Cheney Suthers on 6362 5433.