The Federal Parliament recently passed the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 which provides for all employees in the federal system to have access to 10 days of paid family and domestic violence leave in a 12 month period.
This includes full-time, part-time and casual employees, all of whom get access to the full entitlement of 10 days upfront with effect from:
- 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023)
- 1 August 2023, for employees of small business employers (those with less than 15 employees on 1 February 2023)
- And, in both cases, again on the anniversary of the employee’s engagement by the employer and annually thereafter.
Leave does not accumulate but resets to 10 days on each anniversary.
What is 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 current or former spouse
- an employee’s current or former de facto partner
- an employee’s child
- an employee’s parent
- an employee’s grandparent
- an employee’s grandchild
- an employee’s 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.
What circumstances qualify for taking paid family and domestic violence?
If an employee needs to do something to deal with the impact of family and domestic violence and it is not practical for them to do that outside their working hours, they would be eligible to take family and domestic violence leave.
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.
Does the employee have to provide evidence?
If an employee takes paid family and domestic violence leave, they have to let their employer know 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.
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.
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:
- the employee consents
- 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 employee to discuss and agree on how this information will be handled.
Other important points
The new leave provisions will be independently reviewed after 12 months to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.
Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave that is already provided for under National Employment Standards until they can access the new paid leave entitlement.
Do you need to learn more about what this all means for your organisation or do you need to revamp your policies or contracts to accommodate these changes? If you haven’t worked with us before, we offer a free first consultation. Contact us on 1300 108 488 or at firstname.lastname@example.org.