Published January 2023
In 2022 the Labor Government passed landmark legislation allowing working Australians to gain access to 10 days of paid family and domestic violence leave per year, from 1st February 2023.
For small businesses (those with fewer than 15 employees), the new entitlement comes into effect from 1 August 2023.
This entitlement will be available to most employees, including casuals and will replace the current NES entitlement of 5 days unpaid family and domestic violence leave (FDVL).
This is a huge step forward in relation to a societal and community issue that should not be taken lightly, and there are important changes Australian employers should be aware of. We have summarised the key changes in this employer update and encourage all employers to familiarise themselves with the new entitlement and seek independent advice when needed.
A summary of the new entitlement is provided below:
- This new PAID entitlement commences from 1 February 2023 (except small businesses with fewer than 15 employees – more info in the next section);
- The definition of FDVL will be extended to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household;
- It will be accessible by all employees, including part-time and casuals who have been ‘rostered’ to work (ie. have accepted an offer to work);
- It will be available ‘upfront’ meaning the leave does not accrue throughout the year and is available in full (10 days of pay) at the commencement of every year (within a 12-month period);
- It will be payable at the rate the employee would have earned had they worked instead of taking the leave (instead of being payable only at base rates);
- From 1 February, employers are prohibited from including certain information on an employee’s pay slip about paid family and domestic violence leave;
- Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement.
The new leave provisions will be independently reviewed after 12 months to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.
DATES & WHAT THIS MEANS FOR YOUR BUSINESS
The new paid entitlement will commence from 1 February 2023.
To recognise the unique needs of small businesses with limited human resources, an additional transition period of 6 months will be provided for employers who meet the definition of small business employer in the Fair Work Act 2009 (that is, fewer than 15 employees), meaning it will come into effect for small businesses from 1 August 2023.
This will be a significant change for employers to navigate, particularly given the upfront, blanket application of this new paid leave type. We encourage all employers to begin planning and budgeting for this now. You should also consider how you manage your records and how your payroll system will handle the new entitlement.
HOW THE LEAVE RENEWS
The leave renews every year on each employee’s work anniversary. It doesn’t accumulate from year to year if it isn’t used.
Employees who start on or after the date that the paid leave entitlement becomes available at their new workplace can access the full 10 days for their first day and the leave will renew on their work anniversary.
Employees who are already employed when the paid leave entitlement starts in their workplace can access the full 10 days on the relevant start date. The leave will then renew on their work anniversary.
PAYMENT FOR LEAVE
Full-time & Part-time: can take paid FDV Leave at their full pay rate for the hours they would have worked if they weren’t on leave.
Casuals: will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.
WORKPLACE POLICIES & EMPLOYMENT CONTRACTS
Some businesses may provide FDVL entitlements and procedures in their employment contracts or workplace policies. These should be reviewed prior to the effective date applicable to your business.
All businesses should be aware that if an employment contract or workplace policy provides less than the minimum entitlement in the NES, the NES entitlement still applies.
We are also expecting the Fair Work Information Statements to be updated to reflect the new entitlement so be sure to check this FWO page to ensure you are providing employees with the most up to date version.
From 1 February 2023, there will be rules about information that must not be included on an employee’s pay slip relating to paid family and domestic violence leave. This is to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave.
For pay slips, employers are prohibited from including information that shows:
- That an amount paid to an employee is a payment for FDVL;
- A period of leave taken by an employee has been taken as paid FDVL and;
- An employee’s paid FDVL balance.
All employers should immediately be considering how they will handle this requirement within their payroll system.
NOTICE & EVIDENCE REQUIREMENTS
If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started.
An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence and it is not practical to do so outside of their work hours.
An employer can only use this information to satisfy that the employee is entitled to family and domestic violence leave, unless:
- The employee consents;
- The employer is required to deal with the information by law, or
- It is necessary to protect the life, health or safety of the employee or another person.
Employers can not use the information for other purposes, including taking adverse action against the employee.
All other rules about notice and evidence are the same as the current rules for taking unpaid family and domestic violence leave.
You can find more information about the current rules here.
Employers must take reasonable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide.
Employers are not prevented from disclosing information if:
- It is required by law, or
- Is necessary to protect the life, health or safety of the employee or another person.
Employers should be aware that any information about an employee’s experience of family and domestic violence is highly sensitive. If information is mishandled, it could have adverse consequences for their employee. Employers should work with their employee to discuss and agree on how the information will be handled and seek independent advice when needed.
If you would like more information about workplace privacy, read the Fair Work Ombudsman Workplace Privacy Best Practice Guide here.
The team at Edwards HR will keep our clients up to date with further information on the implementation of this new leave entitlement as they roll out. Be sure to subscribe to updates on our website and follow us on LinkedIn and Facebook so you can stay up to speed.
The Fair Work Ombudsman website will also have more information and updates as they become available.
Confidential information, counselling and support for people impacted by domestic and family violence is available at the 1800 RESPECT website.
Also, the 2023-24 budget recently announced by the Labor Government included a range of commitments aimed at addressing violence against women and children, such as additional frontline workers, education around consent and relationships in schools, housing for women fleeing violence and a new Domestic, Family and Sexual Violence Commission. You can read about them here.
For more guidance about this update, or to find out how Edwards HR can support your business, contract our team today on 07 3568 0866.
Feel free to share this update with others in your network.