Paid Family and Domestic Violence Leave - New Entitlement Rules
The Fair Work Act (FWA) will be revised to offer paid family and domestic violence leave. All national system employees—including part-time and casual workers alike—will benefit from 10 days of this kind of paid leave per annum.
The changes will replace the current minimum statutory entitlement of five days of unpaid leave available for family and domestic violence under the National Employment Standards.
Like the current entitlement to unpaid leave, the new paid leave will be available to employees upfront and won’t accumulate year to year if it is not used within the 12 month period.
When do I have to comply?
The new leave entitlements will commence from:
- 1 February 2023: for employees of non-small business employers (employers with 15 or more employees on 1 February 2023); and
- 1 August 2023: for employees of small business employers (employers with less than 15 employees on 1 February 2023).
All employees, whether they have been with the company for a while or just started their job, will be eligible to receive 10 days of leave from either their start date or when the new leave provisions come into effect. The 10-day period will refresh on each employee's work anniversary as well.
What is paid family and domestic violence leave (FDVL)?
Paid Family and Domestic Violence Leave (FDVL) is an entitlement that allows employees to take time away from work in order to deal with their situation and seek support related to domestic and family violence.
The new Family and Domestic Violence Leave policy is designed to provide employees the necessary tools to protect themselves without leaving them in economically disadvantaged positions due to sudden absences from work or extended breaks of service.
How are these entitlements paid?
Employers will need to pay family and domestic violence leave as follows:
- Full-time and part time employees at their full rate of pay, on the basis that the employee had not taken the period of leave; and
- Casual employees at their full rate or pay for the hours they were rostered to work in the period they took leave.
Payment must cover the employee’s full rate plus any incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other specific identifiable amounts.
How can an employee take their paid leave entitlement?
Employees are permitted to take leave if they must manage the consequences of family and domestic violence, something that is not feasible during regular work hours.
This could include attending court hearings, planning for safety measures, reaching out to police services, therapy sessions or appointments with medical professionals. Furthermore, those meetings may be related to finance-related matters or legal consultation.
To access this entitlement, it is important that employees discuss their situation with their workplace and confirm the details of their leave. Doing so will ensure that the employee receives any payment entitlements during their leave period and that they are aware of any processes associated with taking extra days off appropriately.
Understanding their entitlements can help ensure that employees have access to the leave they need if suffering from a family or domestic violence situation.
What evidence requirements is an employee required to provide?
As an employer, you have the right to request proof from your employee in order to demonstrate that they need time off related to family and domestic violence. You must use this information only for verifying their eligibility for leave, as opposed to making any disciplinary decisions.
Any mishandling of this confidential data can negatively affect your employee; however, employers are allowed a few exceptions when disclosing such information – these include:
- fulfilling legal requirements;
- protecting someone's life or safety (theirs or another person);
- with the approval of the employee themselves.
Failure to comply with an employer’s request for evidence means an employee may be deemed ineligible for the leave.
Comparison of new & existing NES entitlements
The changes replace and expand the current minimum statutory entitlements under the national employment standards in a number of ways.
What happens if I don't comply?
If the above dates are not adhered to, employers and managers may face substantial civil sanctions under Part 4-1 of the Fair Work Act.
This means that non-compliance with proposed family and domestic violence provisions could result in hefty fines as well as other orders from court.
What should employer's do?
Employers must comply with the updated laws and offer improved benefits to applicable employees through:
- Reviewing and updating systems, policies and procedures to ensure compliance;
- Communicating changes to staff;
- Updating systems to reflect the process of new leave;
- implementing record-keeping arrangements to track leave taken
The new leave provisions will be reviewed after 12 months to consider the impacts on small businesses, sole traders and people experiencing family violence.
We suggest you prepare ahead of the new changes to ensure compliance.
Conclusion
In conclusion, employers have an obligation to provide paid family and domestic violence leave as a new entitlement for employees in Australia. Employers must ensure that any processes associated with taking this extra time off are understood and that the employee is provided with all payment entitlements during their absence.
Furthermore, employees should be aware of the evidence requirements they need to provide if applicable, as well as the consequences if there is non-compliance.
As such, employees and employers alike should familiarize themselves with their rights and responsibilities regarding Family and Domestic Violence Leave (FDVL) in order to ensure that workplace safety is maintained.
How we can help?
If you need more advice on this issue, please contact our team.
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