Family and domestic violence leave - What you need to know.

Employees will soon be able to access 10 days of paid family and domestic violence leave in a 12-month period.

All employees in the Fair Work system (including part-time and casual employees) will be entitled to 10 days of paid family and domestic violence leave in a 12-month period. This new entitlement will replace the existing entitlement to 5 days of unpaid family and domestic violence leave under the National Employment Standards (NES).

Employees will be entitled to the full 10 days upfront, meaning they won’t have to accumulate it over time. The leave won't accumulate from year to year if it isn’t used.

The new leave entitlement will be available from:

• 1 February 2023, for employees of non-small business employers (15 or more employees)
• 1 August 2023, for employees of small business employers (less than 15 employees)

Employees can still access 5 days of unpaid family and domestic violence leave until the new paid leave entitlement becomes available to them

How the leave renews

The leave renews every year on each employee's work anniversary. It doesn’t accumulate from year to year if it isn’t used.

Employees who start on or after the date that the paid leave entitlement becomes available at their new workplace can access the full 10 days from their first day. The leave will renew on their work anniversary.

Employees who are already employed when the paid leave entitlement starts in their workplace can access the full 10 days on the relevant start date. The leave then renews on the anniversary of when they started working for that employer (not on the anniversary of the relevant start date).

Taking family and domestic violence leave

Employees (including part-time and casual employees) can take this paid leave if they need to do something to deal with the impact of family and domestic violence.

This could include, for example, the employee:

• making arrangements for their safety, or the safety of a close relative (including relocation)
• attending court hearings
• accessing police services
• attending counselling
• attending appointments with medical, financial or legal professionals.

Meaning of family and domestic violence

Under the new provisions, 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
• causes them harm or fear.

A close relative is:

• an employee's
• spouse or former spouse
• de facto partner or former de facto partner
• child
• parent
• grandparent
• grandchild
• sibling
• a child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de fact partner, or
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Payment for leave

Full-time and part-time employees can take paid family and domestic violence leave at their full pay rate for the hours they would have worked if they weren't on leave.

Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.

Notice and evidence requirements

If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started. An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence and it’s not practical to do that outside their hours of work.

An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:

• the employee consents
• the employer is required to deal with the information by law, or
• it’s necessary to protect the life, health or safety of the employee or another person.

Pay slip requirements

The Government has announced amendments to the Fair Work Regulations 2009 through the Fair Work Legislation Amendment Regulations 2022.

These amendments will prohibit employers from including information concerning family and domestic violence leave on employees’ pay slips. Additionally, the Regulations will remove any ambiguity for employers regarding how to record this leave on payslips.

Specifically, the Regulations state that the following must not be included on payslips:

• A statement that an amount paid to an employee is a payment in respect of the employee’s entitlement to paid family and domestic violence leave
• A statement that a period of leave taken by the employee has been taken as a period of paid family and domestic violence leave
• The balance of an employee’s entitlement to paid family and domestic violence leave

A note included in the Regulations suggests alternative ways to record the leave on payslips, such as stating that the amount is paid as special leave, miscellaneous leave, or leave-other. These amendments will provide clarity and protection for employees affected by family and domestic violence.

What you need to do now

• If you have 15 or more employees, please make sure you have updated your employment contracts and policies to prepare for the 1 February 2023 commencement of this new entitlement.
• If you have less than 15 employees please be ready for the commencement of this leave in the coming months
• All employers have the new payslip obligations regardless of their size. Please ensure your payroll systems are reviewed and are compliant with these leave requirements.

The team at DreamStoneHR is ready to help, reach out to us today at (02) 8320 9320 or [email protected]