The National Employment Standard has been updated to include 10 days of Paid Domestic Violence leave (FDVL). From 1 February 2023, employers with 15 or more employees will be required to provide this leave to all its employees. FDVL for employers with less than 15 employees will commence on 1 August 2023.
Family domestic violence leave is:
- is accessible by all employees including casuals who have been ‘rostered’ (eg have accepted an offer to work)
- is not a ‘pro-rata’ entitlement, that is, it is available in full for all employees (including casuals)
- is available ‘upfront’ meaning the leave is available in full (10 days of pay) from the first day of employment/commencement of the leave
- does not accumulate year to year, i.e it renews each year from commencement or the employee’s work anniversary if unused
- incentive-based payments and bonuses
- loadings
- monetary allowances
- overtime or penalty rates
- any other separately identifiable amounts.is payable at the employee’s full pay rate, i.e base rate plus any:
These characteristics make this new form of leave unique within the Fair Work system.
- 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.
Employers need to keep a record of leave balances and any leave taken by employees. However, pay slips must not mention family and domestic violence leave, including any leave taken and leave balances. This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave.
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.
Notice and evidence requirements
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. The evidence has to convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.
Types of evidence can include:
- documents issued by the police service
- documents issued by a court
- family violence support service documents, or
- a statutory declaration.
Employers can ask employees to provide evidence for as little as 1 day or less off 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.
The employer can’t use the information for other purposes, including to take adverse action against the employee.
Confidentiality
Employers have to take reasonably practicable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide. Employers are not prevented from disclosing information if:
- it’s required by law, or
- is necessary to protect the life, health or safety of the employee or another person.
Employers need to be aware that any information about an employee’s experience of family and domestic violence is sensitive. If information is mishandled, it could have adverse consequences for their employee. Employers should work with their employees to discuss and agree on how this information will be handled.
Employers with businesses that provide employees with paid family and domestic violence leave entitlements in registered agreements, employment contracts or workplace policies that are less than 10 days, need to update these documents to reflect the minimum entitlement under the NES.
Please contact our BetterHR Advice team if you have any questions on FDVL or how you can set up structures such as policies and procedures in the workplace to facilitate confidentiality of FDVL.
Confidential information, counselling and support for people impacted by domestic and family violence is available at the 1800 RESPECT website (https://www.1800respect.org.au), the national sexual assault, domestic and family violence counselling service.
