Introduction of 10 Days paid domestic and family violence leave

Limebite 02/23

Introduction of 10 Days paid domestic and family violence leave

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Authors (from left):

Joel Zyngier, Maddison Harrington, Sophie Stark

All employees in businesses with more than 15 staff* are now entitled to 10 days paid domestic and family violence leave (DFV Leave). This comes from recent changes to the Fair Work Act 2009 (Cth) (FW Act) came into effect on 1 February 2023.**

What’s changed?

These changes were first introduced by the Federal Government in July 2022 and passed into law in November 2022. The amendments enshrine paid DFV Leave as a new National Employment Standard (NES). The new entitlement will apply to all employees covered by the NES, regardless of their employment status or length of service. It replaces the previous NES entitlement of 5 days unpaid DFV leave.

The Government has also expanded the definition of domestic and family violence under the FW Act. It now captures the actions of ‘a member of the employee’s household, or a current or former intimate partner of an employee’, where the action ‘seeks to coerce or control the employee and that causes them harm or to be fearful’.

When can the leave be taken?

DFV leave can be taken immediately from today.

Importantly, unlike personal leave or annual leave, DFV leave does not gradually accrue throughout the year, and cannot be carried over from one year to the next.

Under the FW Act, employees can access paid DFV leave if they are experiencing DFV and need support, or to access services to deal with the impact of family and domestic violence which is impractical to do outside of work hours. This could include making arrangements for their own safety or the safety of a close relative, court appearances, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

Confidentiality

Employers must take steps to ensure information concerning any DFV notice or evidence an employee has given is treated confidentially, as far as it is reasonably practicable to do so. This doesn’t prevent an employer disclosing such information if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

What should employers do?

Employers must approach each request sensitively and, on a case-by-case basis, while ensuring they respect their employees’ safety and privacy.

Important steps employers should take immediately are:

ensure that payroll systems have been updated to reflect the introduction of DFV leave;
ensure that payroll systems do not include reference to DFV leave on employee’s payslips or other documents (instead, recording the leave as ‘special leave’, or ‘miscellaneous leave’ etc);
notify all employees that DFV leave is now available and encourage them to use it where required; and
prepare a policy and/or procedure for employees outlining the leave available, and process for requesting it, including evidence required, and the way requests will be handled, and documents stored.

Further, employers should provide staff (especially managers) with training on DFV and how to support colleagues experiencing DFV.

Like existing leave types, employers may still request evidence from employees as part of their application process. This evidence must convince a “reasonable person” that the leave was taken to deal with the impact of domestic and family violence.

Regardless of whether an employer chooses to maintain its records relating to DFV leave or other support should not put employees at risk of further harm or breach of their privacy.

Employers may consider creating a single contact point for leave requests, such as a dedicated welfare officer within HR (or equivalent) to handle requests sensitively on the employee’s behalf.

What about existing leave types?

Personal/carer’s leave is still available to an employee who is experiencing DFV, if the employee would be entitled to take personal/carer’s leave. However, employers should tell employees about their entitlement to paid DFV leave if they can access it.

What next?

Gilchrist Connell’s national Workplace team can assist employers of all sizes in managing leave requests or preparing policies for your workplace.

*Employers with less than 15 staff (small businesses) may offer DFV leave from 1 February 2023, however, they will only formally be required to provide DFV leave from 1 August 2023.

**Note: Only national system employees covered by the FW Act will be covered by this change currently. Non-national system employees (eg. most state and territory public servants) will be covered once Australia ratifies the International Labour Organization Convention on Violence and Harassment (No. 190).

Joel Zyngier Principal , Melbourne Direct: +61 3 9611 8812 jzyngier@gclegal.com.au

Maddison Harrington Senior Associate , Melbourne Direct: +61 3 9611 8831 mharrington@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.