By Maddie Ziegler & Vanessa James-McPhee
Family and domestic violence can take many forms and is no longer seen as a private or personal issue. It can affect all facets of the person’s life, including when they are at work. For some this might mean absenteeism, reduced engagement and under performance.
As an employer, it is important to know your legal obligations and responsibilities and what employees are entitled to at work if they are experiencing family and domestic violence.
What has changed?
Last year the federal government passed the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill. As a result of this legislative change, the Fair Work Act 2009 (Cth) and the National Employment Standards (NES) will be amended so that all employees are entitled to 10 days of paid family and domestic violence (FDV) leave in a 12-month period. This new entitlement replaces the 5 days of unpaid FDV leave currently in the NES.
All employees, regardless of whether they are casual, part-time and full-time employees will have access to the full 10 days of leave on their commencement date of employment.
When does paid FDV leave come into effect?
The entitlement of paid FDV leave has a staggered commencement:
- For non-small business employers (those with 15 or more employees) this will commence on 1 February 2023
- For small businesses employers (those with less than 15 employees) this will commence on 1 August 2023
Paid FDV leave:
- Is available in full when an employee commences at a new workplace
- Renews every year on an employee’s work anniversary
- Is not cumulative, any unused balance won’t carry across to the following year
Practically this means each year on the employee’s work anniversary their entitlement to paid FDV leave resets to 10 days, regardless of whether they have had to access it or not.
Where an employee needs to take FDV leave, it can be taken as a single continuous period, separate periods of one or more days, or any separate periods agreed to by employer and employee. For example, if an employee requests to take 4 hours of paid FDV leave to attend a financial institution to set up new banking details for themselves to ensure financial independence from a perpetrator, then they would be paid and receive 4 hours paid FDV leave for that time.
Payment for Paid FDV Leave
When an employee takes a period of paid FDV leave, the employer must pay:
- Full-time and part-time employees – their full rate of pay for the hours they would have worked if they were not on leave
- Casual employees – their full rate of pay for the hours they were rostered to work in the period they took leave
This means that incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other separately identifiable amounts must be included.
Taking Paid FDV Leave
The NES sets out that that an employee may take paid FDV leave if:
- They are experiencing family and domestic violence; and
- They need to do something to deal with the impact of the family and domestic violence; and
- It is impractical for them to do that thing outside their work hours
Examples of actions that an employee may use paid FDV leave to carry out are contained within the Act. These include but are not limited to, arranging for the safety of the employee or close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.
Victims of family and domestic violence may not always talk about what is going on, so it is important for us as individuals to be empathetic and support, where we can, any sort of brave step the person is taking in speaking up.
Notice and Evidence
Similar to when an employee needs to take personal / carer’s leave, the NES only requires an employee to provide their employer with notice of their need to take paid FDV leave as soon as practicable. In some situations, this may be after the leave has commenced. Employees must also advise their employer of the period, or expected period, of the leave.
Employers can ask for evidence that shows the employee took the leave to deal with family and domestic violence. The evidence must satisfy 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 or a court, family violence support service documents, or a statutory declaration.
Employers can ask employees to provide evidence for as little as one day or less off work. Failure to provide requested evidence may result in the employee being deemed ineligible for paid FDV leave.
Employers 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
- It is necessary to protect the life, health or safety of the employee or another person
Employers cannot use this information for other purposes, including to take adverse action against the employee.
The new laws impose an obligation on employers to ensure that the use of paid FDV leave is kept confidential not displayed on payslips. This is to reduce the risk to an employee’s safety when accessing paid FDV leave.
To comply with this requirement, we recommend practices characterise FDV in their payroll system and on payslips as special leave, miscellaneous leave or leave-other or something similar.
The regulations also state that the balance of an employee’s entitlement to paid FDV must not be included on payslips.
Interactions with Other Forms of Paid Leave
There may be instances where an employee elects to access other leave types such as paid personal/carer’s leave, annual leave or leave without pay rather than apply for paid FDV leave. Where appropriate, Practices and employers are encouraged to offer paid FDV leave in lieu of employees accessing other leave types, unless it’s employee’s preference to do so.
In situations where an employee is on approved annual or personal/carer’s leave and paid FDV leave is accessed during this period, the employee will no longer be on the other form of paid leave, and the approved annual or personal/carer’s leave is to be recredited.
Practical Tips for Employers
Knowledge, awareness and planning will assist you in meeting your obligations and supporting employees through family and domestic violence.
To ensure your practice is compliant when the new paid FDV leave comes into effect, set out below are some practical tips and recommendations:
- Communicate the new changes and entitlements to all employees
- Review and update systems, policies, safety plans and procedures
- Understand how family and domestic violence affects people from different backgrounds (e.g. Indigenous, LGBTIQ+ communities, people living with a disability, etc.)
- Handle information relating to an employee’s family and domestic violence situation in strict secrecy and on an absolute need to know basis only
- Implement record-keeping arrangements to track leave balances
- Be responsive to individual circumstance – assess the needs of affected employees on a case-by-case basis to determine the type and level of assistance that is required
- Exercise caution when administering FDV leave and ensure the personal circumstances of employees are protected
- Require staff to complete compulsory, regular training on recognising and supporting employees affected by family and domestic violence
- Store any documentation (e.g. absence records) securely and confidentially
- Implement measures that limit or control administration and delegation requirements for the approval of FDV leave, to reduce the likelihood of sensitive, personal information being released
- Discuss all available supports with affected employees (e.g. flexible working arrangements, secure parking and other security measures, referral to external support services, etc.)
If you or someone you know is impacted by family and domestic violence, call 1800 737 732 (the national sexual assault, domestic and family violence counselling service) or visit the 1880 RESPECT website – https://www.1800respect.org.au/
How HIES can help
Please contact the HIES team for further information on this topic or to discuss about the practical implementation of FDV strategies, process and policies in your Practice. You can contact the HIES team on 07 3386 6488 or at [email protected]