Family and domestic violence leave

Family and domestic violence leave

Changes to family and domestic violence leave will take place this year. What will it mean for your private practice? Written by Felicity Buckley, AMA (NSW) Senior Workplace Relations Advisor.

PROGRESS WITH respect to family and domestic violence leave has seen the Labor Government follow through with its promise to legislate paid family and domestic violence leave for all workers through the National Employment Standards. Currently the existing entitlement sits at five days of unpaid leave for all employees. 

On 1 February 2023, and 1 August 2023 for small businesses (less than 15 employees), this entitlement will increase to 10 days of paid leave for all full-time, part-time, and casual employees under the Fair Work system. 

What you need to know:

• The legislation defines family and domestic violence 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. 

• Up until an employee becomes eligible for the 10 days of paid family and domestic violence leave, they will still have access to their current entitlement of five days of unpaid leave. 

• Employees will have access to 10 days of paid family and domestic violence leave each calendar year, with the leave renewing on their work anniversary. This leave will not roll over or accumulate if it is not taken. 

• The leave will be available for those who need to deal with the impact of family and domestic violence, and they are unable to do this outside of their current working hours. Examples of reasons an employee might be eligible to access this type of leave include to make arrangements for their own safety or the safety of a close relative, attend court hearings, access police services, or attend appointments such as counselling, medical, financial, or legal.

• For full-time and part-time employees, the payment for the leave is to be worked out based on their ordinary rate of pay for the hours they would have worked if they were not on leave for those days. For a casual employee, they are to be paid their ordinary rate of pay for the hours they were or would have been rostered to work during that period if they hadn’t taken the leave.

• Employers are allowed to ask their employee for notice and evidence when they access this new leave entitlement, and this will work much the same way as when an employee takes personal / carer’s leave. An employee needs to let you know as soon as possible when they are taking a period of family and domestic violence leave. However, given the nature of this leave it may sometimes be after the leave has commenced.

• When you are asking an employee for evidence that they are entitled to access a period of family and domestic violence leave, you can only use this information to satisfy yourself of the entitlement. This information needs to be kept confidential unless the employee consents to disclosure, or you are required to deal with the information by law, or the employee or another person’s life, health or safety are in danger.

• Pay slips cannot disclose an amount paid to an employee is a payment for paid family and domestic violence leave, the period of leave that has been taken or the family and domestic leave balance. This is to protect the employee’s safety.