New Paid Family and Domestic Violence Leaving Coming

There will be a new entitlement under the National Employment Standards (NES) to paid family and domestic violence leave, which will be available to employees (full-time, part-time and casuals) as follows:

From 1 February 2023 – for employees of non-small business employers - that is: employers with 15 or more employees on 1 February 2023

From 1 August 2023 – for employees of small business employers - that is: employers with less than 15 employees on 1 February 2023

This leave:

• will be available upfront;

• will not accumulate from year to year if it is not used;

• will renew every year on each employee’s work anniversary;

• can be taken if an employee needs to deal with the impact of family and domestic violence. This can include:

  • to make arrangements for their safety, or the safety of a close relative (including relocation);

  • attending court hearings;

  • accessing police services;

  • attending appointments with medical, financial or legal professionals.

For New Employees

Employees that start on or after the date the paid leave entitlement becomes available will be able to access the full 10 days from their first day of employment, and the leave will renew on their work anniversary each year.

For Existing Employees

Employees who are already employed when the paid leave entitlement becomes available will be able to access the full 10 days on the relevant start date listed above, and the leave will renew on their anniversary of when they started working for the employer (not on the anniversary of the relevant start date listed above). The Fair Work Ombudsman has listed an example on their website which confirms that if an employee started work on 19 December 2020, and the entitlement can be accessed on 1 February 2023, the employee will be able to access the full 10 days leave from 1 February 2023, and will then have their leave balance renewed on their work anniversary date of 19 December each year.

What does ‘Family and Domestic Violence’ include?

‘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, and causes them harm or fear.

What is a ‘Close Relative’ for the purposes of Family and Domestic Violence Leave?

The definition of ‘close relative’ is set out in NES and includes:

• Spouse or former spouse

• Parent

• De facto partner or former de facto partner

• Grandparent

• Child

• Grandchild

• Sibling

• A child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner

• A person related to the employee accordingly to Aboriginal or Torres Strait Islander kinship rules

How is Family and Domestic Violence Leave Paid?

Payment for such leave will be at the employee’s full rate of pay for the hours they would have worked if they were not on such leave. Casual employees will be paid at their full rate of pay for the hours they were rostered to work in the period they took such leave.

An employee taking such leave will be entitled to their full rate of pay, which will include the base rate, as well as any:

• Incentive-based payments and bonuses

• Loadings

• Monetary allowances

• Overtime or penalty rates

• Any other separately identifiable amount

How does Family and Domestic Violence Leave Interact with Other Leave?

Employees are able to use paid family and domestic violence leave during a period of paid personal/carer’s or annual leave – if this occurs, the employee will no longer be on the other form of paid leave, and will be taking family and domestic violence leave instead. However, an employee needs to give the employer the required notice and evidence to take family and domestic violence leave.

What are the Notice and Evidence Requirements?

Employees taking such leave will have to let their employer know as soon as possible, but this could be after the leave has started.

Employers can ask for evidence to show that the employee does need to do something to deal with family and domestic violence, and that it is not practical for them to do so outside of their hours of work.

Employers will be limited to using this information to satisfy that an employee is in fact entitled to take such leave, unless the employee consents, or the employer is required to deal with the information by law, or it is necessary to protect the life, health or safety of the employee, or another person. Importantly, an employer cannot use such information for other purposes, including to take adverse action against the employee. All other rules relating to notice and evidence are the same as the current rules for taking unpaid family and domestic violence.

New Payslip Rules from 1 February 2023

From 1 February 2023, there will be new rules about information that must not be included on employee payslips relating to family and domestic violence leave. This includes that payslips must not mention family and domestic violence leave, including any leave taken and leave balances.

Employers must also keep a record of leave balances and any leave taken by employees.

Support Services

There is a national sexual assault, domestic and family violence counselling service available for people impacted by domestic and family violence at the 1800 Respect website: www.1800respect.org.au

Employee support programs provided by employers may also provide impacted employees with support.

What do Employers need to do?

If your business has employment agreements, an enterprise agreement, and/or a workplace policy in place that provides for paid family and domestic violence leave, note that the entitlement to such paid leave cannot be less than the minimum set out above, which will be reflected in the NES – so if your agreements or policies provide for a lesser entitlement, the greater entitlement in NES will apply, so you will need to update these documents accordingly.

Employers should review their relevant agreements and policies, and amend as necessary to ensure compliance with this new NES entitlement.

Employers should ensure that from 1 February 2023, they comply with the rules about the information that must not be included on an employee’s pay slip relating to family and domestic violence leave. This may require you to talk to your payroll team and/or external payroll provider to ensure compliance. Also ensure that you are keeping a record of leave balances for this leave, and a record of leave taken by your employees for this leave.

Employers with an Employee Assistance Program should check in with their provider with regards to support that can be provided to employees on family and domestic violence issues in the event an employee requires such leave.

Remember that employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement in line with the above dates, when the unpaid leave will be replaced with new paid leave arrangements.

Note: This leave will be reviewed to determine the impacts on small businesses, sole traders and people experiencing family and domestic violence, so we will of course provide an update should there be any further changes as a result of this review in due course.

If you have any questions about this new paid entitlement, please contact IR Legal Solutions to discuss.