Paid family and domestic violence leave is to be introduced in Australia: here’s how it affects you

By Alan J. McDonald

Employers and employees must be live to recent legislative changes to the Fair Work Act 2009 (Cth) (the Act) which are set to introduce paid Family and Domestic Violence Leave (FDV Leave).

What are the key changes to FDV Leave?

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (the Amendments) all full-time, part-time, and casual employees who categorically fall under a modern award, enterprise bargaining agreement or the National Employment Standards (NES) will be entitled to 10 days of paid FDV Leave within a 12-month period.

Importantly, whilst these changes mark a significant change to the Act, it is important to note that paid FDV Leave is not an accrued entitlement like annual leave, personal leave or long service leave.

The new FDV Leave standards will come into effect from:

• 1 February 2023, for employers with 15 or more employees; and
• 1 August 2023, for small business employers.

Under what circumstances can I take paid FDV Leave?

Employees can take paid FDV Leave if they are:

• experiencing family and domestic violence;
• need to take action to deal with the impacts of family and domestic violence; and
• it would be impractical for the employee to do so outside of work hours.

The definition for ‘family and domestic violence’ under the Act is broad. It includes violent, threatening, or other abusive conduct that is undertaken against the employee, a close relative of the employee or a member of the employee’s household.

It further stipulates that abuse may occur at the hands of a former intimate partner of the employee, who:

• seeks to coerce or control the employee; and
• causes the employee harm or to be fearful.

In practice, this may include physical, financial, verbal, psychological, sexual, religious and reproductive abuse.

The amendments also provide a non-exhaustive list of instances when paid FDV Leave might need to be taken. This includes circumstances in which an employee may need to:

• arrange for the safety of the employee or a close relative (including relocation);
• attend court hearings;
• access police services;
• attend counselling; and
• attend appointments with medical, financial or legal professionals.

What is the rate of pay for FDV Leave?

Permanent employees are to be paid according to their full rate of pay had they not taken leave.

Casual employees are to be paid according to their rate of pay had they worked their ordinary rostered hours.

How must paid FDV Leave be taken?

Leave may be taken as a single continuous 10-day period or alternatively, in separate periods of at least one day. The employer and employee can also agree to leave being taken in periods of less than one day.

Employees taking paid FDV Leave must notify their employers as soon as possible that they are taking paid FDV Leave and notify them of the expected length of leave. This can take place after the leave has started.

What do employers need to be aware of with respect to the Amendments?

It can be overwhelming for employers to implement the required changes within their organisation if they have not adequately planned and prepared for these changes.

Penalties for Non-Compliance

Non-compliance with the paid FDV Leave provisions may give rise to civil remedy breaches under Part 4-1 of the Act. These breaches can range from 60 penalty units ($11,095.20) to 600 penalty units ($110,952) for serious contraventions.

Evidentiary Requirements for taking FDV Leave

Employers can request employees to provide evidence that the leave was taken to deal with the impact of family and domestic violence. The evidence must be capable of convincing a reasonable person that the leave was taken to deal with the impacts of family and domestic violence. This may include police documents, court documents, family violence support service documents or a statutory declaration

Confidentiality

Employers should be mindful that the use of any information provided by an employee for the purpose of taking paid FDV Leave should be solely confined to this purpose.

How to prepare for the implementation of paid FDV Leave?

To ensure compliance with legislative changes, employers should consider taking the following steps:

• Update policies and procedures to ensure that there are fully updated and proper procedures in place for taking paid FDV leave;
• Review any existing Enterprise Bargaining Agreement FDV Leave provisions – if you are an employer that has an Enterprise Bargaining Agreement (EBA), you will need to verify that your current paid FDV Leave provisions comply with minimum entitlement of 10 paid days. If it is non-compliant, you may apply to the Fair Work Commission to vary the EBA accordingly.
• Training staff on the content of the legislative changes and how to deal with requests to take FDV Leave.
• Updating record-keeping arrangements to track leave taken
• Communicating the changes you will be implementing to employees

The lawyers at McDonald Murholme Solicitors will continue to monitor any related developments to the legislative changes to FDV Leave. If you are an employer or employee and require further information or assistance, please contact us on (03) 9650 4555.