As reported in our previous article, the requirement to provide employees with 10 days of paid family and domestic violence leave starts on 1 August 2023 for small businesses (employers with less than 15 employees). It’s been in place for employers with 15 or more employees since 1 February 2023.
In this article we provide answers to the most common questions we receive about this new type of leave.
Which employees are entitled to paid family and domestic violence leave?
All employees, even casuals get this entitlement.
It is payable at the full rate the employee would have earned had they worked and not taken the leave (ie it includes penalty rates, loadings, etc).
For casual employees, the rate of pay is worked out as if the employee had worked the hours they were rostered to work. An employee is taken to have been rostered to work hours if they have accepted an offer to work those hours.
How much leave do employees get?
All employees are entitled to 10 days of paid leave per year of employment, the leave is available in full at the start of each year. Unused leave does not carry over year-to-year, but “resets” at the start of each year of employment.
Does paid family and domestic violence leave come out of personal/carer’s leave?
No. It is a separate entitlement (see below as to what the leave can be taken for).
A victim of family or domestic violence might well be able to take personal/carer’s leave as well as paid family and domestic violence leave (if they were too ill or injured to perform their work) or to care for a member of their immediate family or household who required care due to illness or injury or for an unexpected emergency as a result of family or domestic violence. But the matters that paid family and domestic violence can be taken for are much broader.
What purposes can paid family and domestic violence leave be taken for?
The definition of family and domestic violence is violent, threatening or other abusive behaviour by a close relative of the employee, a member of the employee’s household, or a current or former intimate partner of the employee, that:
- seeks to coerce or control the employee, and
- causes the employee harm or to be fearful.
An employee can take family and domestic violence leave if the employee is experiencing family and domestic violence and it is impractical for them to do something to deal with family and domestic violence outside their work hours. This could include things like:
- arranging for the safety of the employee or a close relative (including relocation)
- attending court hearings, counselling or appointments with medical, financial or legal professionals
- accessing police services
Can I require my employee to provide evidence of the need to take paid family and domestic violence leave?
As with other types of leave available under the Fair Work Act, employers can require employees to produce reasonable evidence. This could be something like a medical report, police report, evidence of attendance at a particular appointment or a statutory declaration.
How is paid family and domestic violence leave dealt with in payslips?
Paid family and domestic violence leave must be reported on a pay slip as ordinary time worked, overtime or an allowance, and must not be reported as a type of leave such as “miscellaneous leave” or “other leave”. The only exception to this prohibition is where an employee has requested paid family and domestic violence leave to be recorded as a period of leave.
See our previous article here.
Do I need to update my workplace policies and employment contracts?
We would recommend that all employers have a leave policy which sets out entitlements to all forms of leave including paid family and domestic violence leave.
We consider that it is best practice to include reference to the entitlement to this leave (and other forms of leave) in an employment contract, to signpost employees to the entitlement. However, employees will be entitled to the leave even if it is not mentioned in their employment contract.
Need further help?
If you require any further help in updating policies or contracts or to understand your obligations please contact EI Legal on firstname.lastname@example.org or 1300 180 902