Employers must provide leave entitlements as per the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act), the applicable modern award or enterprise agreement, the employee’s employment contract and in some cases, state legislation. The NES provide leave entitlements that all employees are entitled to. This includes annual leave, personal/carers’ leave, parental leave, compassionate leave and family and domestic violence leave. In this post, we explain an employee’s entitlement to family and domestic violence leave.
What is family and domestic violence?
Under the FW Act, it is defined as:
“violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that:
(a) seeks to coerce or control the employee; and
(b) causes the employee harm or to be fearful.
A close relative of the employee is a person who:
(a) is a member of the employee’s immediate family, for example, a spouse, former spouse, a de facto partner, a child, parent, grandparent, grandchild or a sibling
(b) or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.”
Family and domestic violence can present in many forms, and not all forms are visible. It can be, for example, physical such as physical violence, sexual assault, damage to property or abuse of pets, but it can also be non-physical violence such as verbal abuse, emotional abuse, psychological abuse or even financial abuse.
What is family and domestic violence leave?
Employees experiencing family and domestic violence are eligible to take paid family and domestic violence leave if they need to do something to deal with the impact of family and domestic violence and it’s not practical for them to do so outside of their work hours.
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; or
• attending appointments with medical, financial or legal professionals.
How much leave does an employee receive and when does it start for businesses?
Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. It won’t be pro-rated for part-time or casual employees.
What does an employee get paid when they take the leave? How can they take the leave?
Payment
When accessing family and domestic violence 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.
Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave. So, where a casual accepts shifts in a roster period and then takes family and domestic violence leave on a day they accepted to work, they should be paid for these shifts.
As employee's are paid at their full rate, this should be the employee’s base rate of pay plus any other entitlements such as incentive-based or bonus payments, loadings, monetary allowances, overtime or penalty rates.
Taking
In terms of taking family and domestic violence leave, this can be taken in a number of ways, for example,
• a single continuous 10 day period; or
• a separate periods of one or more days each; or
• otherwise any separate periods that are agreed to between the employer and the employee, such as a few hours in a morning or an afternoon.
Does an employee need to accrue the leave before being able to use it?
No. It’s available in full at the start of each 12 month period of the employee’s employment, and does not accumulate from year to year.
To determine the employee’s start date, including non-permanent employees like casuals or seasonal workers, this will be the date the employee first commenced employment with the employer.
Does an employee need to exhaust their other leave before being entitled to this leave?
No. In fact, where an employee is on a period of paid personal/carer’s or annual leave, they can request to be on a period of paid family and domestic violence leave instead during that period. However, this is subject to the employee giving the required notice and evidence.
How much notice does an employee have to give? Can an employer ask an employee to provide evidence?
Notice
· must be given to the employer as soon as practicable (which may be a time after the leave has started); and
· must advise the employer of the period, or expected period, of the leave.
Evidence
An employer may request evidence that would satisfy a reasonable person that:
the employee is experiencing family and domestic violence;
the leave is for the employee to do something to deal with the impact of the family and domestic violence; and
it is impractical for the employee to do that thing outside the employee’s work hours.
Evidence the employer could ask for include:
· a statutory declaration;
· documents issued by police;
· documents issued by court; or
· family violence and support service documents.
Confidentiality
Where an employer does receive documentation or information concerning notice or evidence an employee provides, they must ensure that this is treated confidentially, as far as it is reasonably practicable to do so.
An employer must not:
other than with the consent of the employee, use such information for a purpose other than satisfying itself in relation to the employee’s entitlement to leave; or
use such information to take adverse action against an employee.
However, an employer may deal with information provided by an employee if doing so is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person. For example, there may be a situation where you need to call the police if an aggressor enters the workplace, and it is necessary to provide details to the police about the aggressor.
An employer may also use this information to proactively put measures in place to prevent risks to employees’ health and safety in the workplace. For example, an employer could put mechanisms in place to limit the risk of interaction with the perpetrator by putting in appropriate measures like securing the workplace and controlling entry through swipe card or pin code access, clearly identifying visitors to avoid accidentally allowing a perpetrator to enter the workplace or providing workers with a safe, secure place to retreat in the event of an incident.
Can I list domestic violence leave as a leave type on an employee’s pay slip?
No. From 4 February 2023, an amount paid to an employee for taking paid family and domestic violence leave has to be recorded on a pay slip as:
· ordinary hours of work; or
· another kind of payment for performing work, such as an allowance, bonus or overtime payment.
This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave. So, whilst employers need to keep a record of leave balances and any leave taken by employees, pay slips must not mention paid family and domestic violence leave, including any leave taken and leave balances.
However, if an employee requests it, their employer can record time taken as paid family and domestic violence leave as another type of leave on their pay slip (for example, annual leave).
As a best practice and general guide, employers should record the taking of family and domestic violence leave in a way that makes the pay slip look as close as possible to how it would have looked if the employee had not taken the leave.
DISCLAIMER
The information in the package is intended as a general guide only, not legal advice, and specific legal or HR advice should be sought when necessary.
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