This article contains important information about upcoming changes to Paid Family and Domestic Violence Leave that will take effect from 1st February 2023 for non-small business employers and 1st August 2023 for small business employers.

What is Family and Domestic Violence?

The issue of family violence and domestic violence is not only a private or personal one. Besides affecting a person’s ability to lead a productive life, it also affects their children and families. Under the new provisions, family and domestic violence are defined as “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 and causes them harm or fear.”

Those who live with family and domestic violence often experience heightened financial stress, homelessness, isolation, vulnerability, and shame. In the absence of appropriate support, workplaces can suffer a great deal. The right knowledge, awareness, and planning can help employers support their employees, meet their workplace obligations, and protect their workplaces.

What are the changes and the impacts?

Under the changes to Paid Family and Domestic Violence Leave, 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. Employees will be entitled to the full 10-day leave entitlement upfront, which renews every year on the anniversary of their employment, and which will not accumulate from year to year if it is not used.

It is important to note that, until the relevant start date, employees can still access 5 days of unpaid family and domestic violence leave until the new paid leave entitlement becomes available to them.

Employees can take paid family and domestic violence leave at their full pay rate for the hours they would normally work if not on leave. A casual employee will be paid at the full rate for all hours worked during the period they took leave. An employee’s full pay rate includes all incentive payments, bonuses, loadings, monetary allowances, overtime and penalty rates in addition to their base rate.

Employees who are already employed when these changes take effect will be able to take this leave from the relevant start date. Additionally, employers are prohibited from including information about paid family and domestic violence leaves on employees’ pay slips.

An employee (including a part-time employee and a casual employee) may take this leave as required to deal with the impact of domestic violence and family violence on them. This may include making arrangements for their safety, or the safety of close relatives, including relocation, as well as attending court hearings, meeting with police, attending counselling, or making medical, financial, or legal appointments.

The employee may use paid family and domestic violence leave during a period of paid personal/carer’s leave or annual leave. In this case, the employee will no longer be on any other form of paid leave and will instead be taking paid family and domestic violence leave. It is the employee’s responsibility to provide their employer with the necessary notice and evidence.

What notice and evidence is required?

An employee must notify their employer as soon as possible if they are taking paid leave for family and domestic violence. In some cases, this may occur after the leave has begun. When an employer asks their employee for evidence to demonstrate that it is not practical for them to deal with family and domestic violence outside work hours, the employee should provide such evidence.

As far as the employer is concerned, they may only use this information to verify the employee’s claim for family and domestic violence leave, unless the employee consents, the employer is required by law to handle the information confidentially, unless it is necessary to protect the employee’s life, health, or safety.

The employer cannot use the information for any other purpose, including taking adverse action against the employee. All other rules regarding notice and evidence are the same as those that govern the current process for taking leave without pay for family or domestic violence.

How does this affect workplaces under recognised Fair Work instruments?

Registered agreements, employment contracts, or workplace policies may provide employees with paid family and domestic violence leave entitlements. In the event that any of these instruments provides less family and domestic violence leave than the minimum entitlement under the NES, the NES entitlement applies.

Employers may face severe repercussions if they do not meet their workplace obligations. Among these are fines and penalties, risks to employees, customers and contractors’ health and safety, reduced productivity and reputational damage.

Understand your legal obligations as an employer by familiarising yourself with them. Fair Work has an easy-to-follow guide which you can read here.

If you have any questions about any of these changes or would like to speak to one of our HR Team to discuss how these changes affect your business please contact us on (08) 9383 3293.

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