From 1 February 2023, most employees are entitled to access paid family and domestic violence leave ("FDV leave"), which replaces the previous unpaid FDV leave entitlement. However, small business employers (those with less than 15 employees as of 1 February 2023) are only required to provide paid FDV leave from 1 August 2023. As paid FDV leave is part of the National Employment Standards under the Fair Work Act 2009 (Cth) ("FW Act"), it is not legally possible for employment contracts, Modern Awards and Enterprise Agreements to exclude or undercut the new leave entitlement. Paid FDV leave ensures that employees, especially casuals, do not have to choose between personal safety and economic security.
Until the paid leave entitlement for employees of small businesses commences on 1 August 2023, they retain the right to access unpaid FDV leave.
How much FDV leave is available?
All full time, part time and casual employees will be able to access 10 days of paid FDV leave in a 12 month period. The employee does not need to have worked a minimum period to access the leave; it is available when the employee commences employment. The entitlement is not pro-rated and does not accrue if unused.
When can FDV leave be taken?
An employee is entitled to take FDV leave when they are experiencing family and domestic violence and it is impractical to deal with the impacts of FDV outside of work.
Under the new legislation, the definition of "family and domestic violence" has been amended. The new FDV definition will not only encompass "violent, threatening or other abusive behaviour by a close relative of an employee" but will extend to similar behaviours by a member of an employee's household, or a current or former intimate partner of an employee.
What are the notice and evidence requirements?
If an employee takes FDV leave, they should let their employer know as soon as possible, which can also be after the leave has started. An employer can ask the employee for evidence to show that the employee needs to take action to deal with FDV and it is not practical to do so outside of work.
What about confidentiality?
The employer can only use the evidence provided by the employee to establish whether the employee is entitled to FDV leave. There are very limited circumstances in which the evidence may be used in other ways, for example to comply with a legal obligation or to protect the life, health or safety of the employee or another person.
Importantly, to protect an employee's privacy, the following information relating to FDV leave must not be shown on payslips:
(a) 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; and
(b) a statement that a period of leave taken by the employee has been taken as a period of paid family and domestic violence leave; and
(c) the balance of an employee's entitlement to paid family and domestic violence leave.
However, employers are required by law to keep a record of leave balances and leave taken by employees. The Fair Work Regulations suggest that leave could be recorded in payroll systems in other ways, such as "miscellaneous leave", "special leave" or "leave – other".
What should employers do to implement the change?
Employers are required to comply with the new law even if their pre-existing Enterprise Agreement, or the Award(s) that covers their staff, provide less favourably. (At the time of writing most Modern Awards still reflect the unpaid entitlement to FDV leave but are likely to be updated shortly to incorporate the NES entitlement to paid FDV leave.)
Employers, employees or unions covered by pre-existing Enterprise Agreements may apply to the Fair Work Commission to vary their Enterprise Agreements to ensure that the entitlements available under the Agreement are consistent with the National Employment Standards, as updated from time to time.
It is not necessary to amend individual employment contracts; however, employers will need to update their policies, payroll and leave systems.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.