Paid Family and Domestic Violence Leave
Effective from 1st February 2023
In accordance with the National Employment Standards (NES) under the Fair Work Act, all employees (including part-time and casual employees) are now entitled to access 10 days of paid family and domestic violence leave (FDVL) in a 12-month period.
This replaces the existing entitlement to 5 days of unpaid FDVL under the NES.
The new FDVL entitlement is available from:
1 February 2023, for employees of businesses with 15 or more employees
1 August 2023, for employees of small businesses (less than 15 employees)
Existing employees will be entitled to the full 10 days FDVL from these dates. The entitlement renews on their work anniversary date (not on the legislated leave start date).
For employees who start on or after the date that the paid leave entitlement becomes available at their new workplace, they can access the full 10 days from their first day. The leave will renew on their work anniversary.
Paid FDVL is capped at 10 days per annum and renewed every year on the employees work anniversary. FDVL does not accumulate from year to year if it isn’t used.
Examples:
1. Employee started work before the paid leave entitlement comes into effect
Alice started work with her employer on 10 November 2021. Her employer has more than 15 employees, so Alice is entitled to the new paid leave from 1 February 2023.
Alice will be able to access the full 10 days from that date. Her leave balance will renew on her work anniversary (10 November).
2. Employee starts work after the paid leave entitlement comes into effect
Henry starts work with a small business employer on 8 September 2023. From this date, he can access 10 days of paid FDVL. His entitlement will renew on 8 September each year.
Eligibility
Employees (including part-time and casual employees) can take this paid leave if they need to take time off 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.
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 seeks to coerce or control the employee and that 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.
This includes base rate for all hours that the employee would have worked, plus penalty rates, loading, allowances or other amounts that they would have been paid if they’d worked instead of taking 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.
Protected employee attributes
If an employee takes paid family and domestic violence leave, they need to notify their employer 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.
Record Keeping
To protect employees affected by family and domestic violence, the Fair Work Regulations 2009 prohibits employers from including information concerning FDVL on employees’ pay slips.
Employers however, will need to keep a record of leave balances and any leave taken by employees. Alternative ways to record FDVL on payslips, are for example, stating that the amount is paid as ‘special’, ‘miscellaneous’, ‘approved’ or ‘other’ leave.
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 to share the information with other parties
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.
Interaction with other paid leave
An employee can use paid family and domestic violence leave during a period of paid personal/carer’s or annual leave. If this occurs, an employee is no longer on the other form of paid leave and is taking paid family and domestic violence leave instead. The employee will need to provide the required notice and evidence.
Next Steps:
Ensure your managers and employees are familiar with the new changes and implementation dates. Build awareness into your induction, management, safe work and general training programs.
Review and update employment contracts, policies and processes to reflect the changes.
Ensure your payroll systems are reviewed and compliant with FDVL requirements.
Establish internal procedures to ensure information related to family and domestic violence is treated strictly confidentially, including the recording of leave.