Paid Family & Domestic Violence Leave Commences

OWEN WEBB - AHA | SA WORKPLACE RELATIONS MANAGER

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) (‘the Act’) received Royal Assent on 9 November 2022. The Act which was introduced by the Albanese Federal Government amends the Fair Work Act 2009 (Cth) (‘FW Act’) to provide for 10 days of paid family and domestic violence leave.

The new family and domestic violence leave changes amend the existing family and domestic violence leave provisions contained in the National Employment Standards (‘NES’) under the FW Act. In this article we outline the new paid family and domestic violence provisions under the FW Act and how they apply to employees.

WHAT ARE THE NEW PAID FAMILY AND DOMESTIC VIOLENCE LEAVE CHANGES?

The changes introduce a new minimum standard under the FW Act that enable all full-time, parttime and casual employees to be able to access up to 10 days of paid family and domestic violence leave per 12 month period.

The 10 days of leave are available upfront each year on the employee’s work anniversary and it does not accumulate from year to year.

This new entitlement replaces the previous family and domestic violence leave entitlement of five days of unpaid family and domestic violence leave per 12 month period under the FW Act.

WHO DO THE NEW PAID FAMILY AND DOMESTIC VIOLENCE LEAVE PROVISIONS APPLY TO?

The new paid family and domestic violence leave provisions in the FW Act are a national minimum standard. Therefore they apply to all employees whose terms and conditions of employment are governed by the FW Act, including those employed under a Modern Award, an Enterprise Agreement or Award/Agreement free employees. For example the new paid family and domestic violence leave provisions apply to employees employed pursuant to the Hospitality Industry (General) Award 2020

If an employee is employed pursuant to an Enterprise Agreement and the Enterprise Agreement has less advantageous terms than the new family and domestic violence leave provisions under the NES in the FW Act, then the family and domestic violence leave provisions under the FW Act apply.

WHEN DOES THE NEW LEAVE ENTITLEMENT COMMENCE?

The new paid family and domestic violence leave entitlement commences from:

• 1 February 2023, for employees of non-small business employers;

• 1 August 2023, for employees of small business employers (A small business employer is defined under s 23 of the FW Act and includes a business that employs less than 15 employees on 1 February 2023).

For employees of small business employers, until the commencement date of the new leave entitlement in August, employees will still be able to access the 5 days of unpaid family and domestic violence leave.

The new paid family and domestic violence leave entitlement renews every year on each employee’s work anniversary.

Example: Employee commences employment before the new paid leave entitlement comes in - Paul commenced his employment with a non-small business employer on 20 June 2019. From 1 February 2023 he will be entitled to access up to 10 days of paid family and domestic violence leave. The paid family and domestic violence leave balance will renew on his work anniversary on 20 June 2023 and then each work anniversary thereafter.

Example: Employee commences employment after the new paid leave entitlement comes in - Mary commenced her employment with a small business employer on 25 October 2023. From her commencement date of 25 October 2023 Mary will be entitled to access up to 10 days of paid family and domestic violence leave and her entitlement will renew on her work anniversary on 25 October each year.

TAKING PAID FAMILY AND DOMESTIC VIOLENCE LEAVE

An employee can take paid family and domestic violence leave if the employee is experiencing family and domestic violence and the employee needs 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 ordinary hours of work.

Family and domestic violence

means violent, threatening or other abusive behaviour by an employee’s close relative, current or former partner, or a member of the employee’s household that seeks to coerce or control the employee and causes the employee harm or to be fearful.

A close relative of the employee is a person who is a member of the employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

WHAT NOTICE AND EVIDENCE CAN AN EMPLOYER REQUIRE?

An employee needs to provide their employer with notice of the requirement to take paid family and domestic violence leave 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.

An employer can require that an employee provide them with evidence to demonstrate that they need to take the leave to deal with family and domestic violence. Such evidence would need to satisfy a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.

Examples of the type of evidence that an employee could provide includes documentation demonstrating:

• Arrangements being made for the relocation of the employee or a close relative

• Attending court hearings

• Accessing police services

• Attending counselling

• Attending appointments with medical, financial or legal professionals

PAYMENT FOR PAID FAMILY & DOMESTIC VIOLENCE LEAVE

An employee that takes family and domestic violence leave will need to be paid at their “full rate of pay”. The full rate of pay is defined under section 18 of the FW Act as the rate of pay payable to the employee, including incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other separately identifiable amounts.

CASUAL EMPLOYEES

If a casual employee takes a period of family and domestic violence leave, the employer must pay the employee at the employee’s full rate of pay, worked out as if the employee had worked the hours in the period for which the employee was rostered. A casual employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours.

Astrid is a casual food and beverage attendant employed pursuant to the Hospitality Industry (General) Award 2020 who works on Thursday, Friday, Saturday and Sunday. Astrid tells her employer that she needs to take the week off to deal with the impact of family and domestic violence. Astrid was rostered to work 24 hours across the 4 days, with 6 hour shifts on each day. Astrid’s employer needs to pay her base rate plus 25% for her Thursday and Friday shift and then her base rate of pay plus applicable penalty rates for her Saturday shift (base rate plus 50%) and Sunday shift (base rate plus 75%). Astrid also needs to be paid any other loadings, allowances or other amounts that she would have been paid if she had worked her rostered hours. Astrid’s balance of paid family and domestic violence leave would reduce by 4 days until it renews on her annual work anniversary.

FULL TIME & PART TIME EMPLOYEES

If a full time or part time employee takes a period of family and domestic violence leave, the employer must pay the employee at the employee’s full rate of pay, worked out as if the employee had not taken the period of leave.

Jennifer is a full-time gaming attendant employed pursuant to the Hospitality Industry (General) Award 2020 who works 38 hours per week, Tuesday to Saturday. Jennifer tells her employer that she needs to take Thursday, Friday and Saturday (3 days) off work to deal with the impact of family and domestic violence. Jennifer was rostered to work 24 hours across those 3 days, with 8 hour shifts on each day.

Jennifer’s employer needs to pay her base rate for her Thursday and Friday shift and then her base rate of pay plus applicable penalty rate for her Saturday shift (base rate plus 25%). Jennifer also needs to be paid any other loadings, allowances or other amounts that she would have been paid if she had worked her rostered hours. Jennifer’s balance of paid family and domestic violence leave would reduce by 3 days until it renews on her annual work anniversary.

INTERACTION WITH OTHER PAID LEAVE

If the period during which an employee takes paid personal/ carer’s leave includes a period of paid family and domestic violence leave, the employee is taken not to be on paid personal/carer’s leave for the period of that paid family and domestic violence leave.

CONFIDENTIALITY

Employers must take steps to ensure information concerning any notice or evidence an employee has given in relation to family and domestic violence is treated confidentially, as far as reasonably practicable to do so.

An employer must not, other than with the consent of the employee, use any such information for a purpose other than satisfying itself in relation to the employee’s entitlement to family and domestic violence leave.

An employer is not prevented however from dealing 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.

PAY SLIPS

From 1 February 2023, employers are prohibited from including information on pay slips that shows:

• a payment for paid family and domestic violence leave

• a period of leave taken by an employee as paid family and domestic violence leave

• an employee’s paid family and domestic violence leave balance.

Employer’s will need to record an employee’s paid family and domestic violence leave in other ways such as ‘leave–other’.

IMPLICATION FOR EMPLOYERS

Employers need to ensure that they undertake the following, if not already:

• Update policies and procedures to reflect the new paid leave provisions and ensure that procedures are clear on how an employee can access such leave and any evidence required by the employer.

• Ensure that payroll systems are updated to provide for paid family and domestic violence leave.

• Ensure that employees are aware of their ability to access such leave arrangements and that the employer can provide support to any team members suffering from family and domestic violence.