Family and Domestic Violence Leave entitlements are changing. What does this mean for employers?January 25, 2023
On 28 July 2022, the Albanese Government introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill) into Parliament.
Why? Because domestic violence is still causing far-reaching waves affecting the lives of millions of people. The issue – which by its definition happens at home – is intruding on workplaces.
The most recent Personal Safety Survey, published by the Australian Bureau of Statistics, indicates that physical, sexual, and domestic partner violence has remained relatively stable between 2005 and 2016. This, alongside the fact that one in five Australians believe the use of physical force is a typical reaction to day-to-day stress, indicates that family and domestic violence is an ever-present, consistent issue.
The Bill seeks to enhance the current five-day, unpaid leave entitlement held in the Fair Work Act 2009 (Cth) (‘the Act’) so that Australians, struggling with family and domestic violence, can take more time to protect themselves and seek support.
On 27 October 2022, the Bill passed through Parliament and therefore its propositions were confirmed as Australian law. Although this marks a monumental “step in the right direction”, it has many Australian business owners questioning what the changes are and what this means for their business.
In this article, we explain the specifics of what changes have arrived.
What changes are being made following the passing of the Bill?
- Leave entitlement has expanded from five days to 10 days each year.
Section 106A(1) of the Act entitled employees to five days of unpaid family and domestic violence leave each year. However, this entitlement has now been extended to 10 days of paid family and domestic violence leave each year.
These 10 days do not accrue on a pro-rata basis. Instead, the 10-day entitlement is provided in full upon an employee’s commencement with a business. Each year, on an employee’s anniversary with the business, this 10-day entitlement re-sets; it does not roll over from year to year alike to annual leave or personal and carers leave.
- Any period of absence under family and domestic violence leave is now paid.
Family and domestic violence leave is now a paid entitlement. Typically, paid leave entitlements are provided at an employee’s base rate of pay. However, to minimise the loss an employee would suffer following a period of family and domestic violence leave, the Bill authorises payment at the rate of pay that the employee would have received had they had not taken the leave. This means they will be paid at their full rate of pay which, as defined in section 18 of the Act, is inclusive of any and all loadings, penalties, allowances, overtime bonuses and incentive-based payments.
- The eligibility criteria for family and domestic violence leave has broadened
To access family and domestic violence leave, an employee must certify that they were experiencing family and domestic violence. Section 106B(2) of the Act defines ‘family and domestic violence’ as violent, threatening, or other forms of abusive behavior from a “close relative” that seeks to coerce, control, harm or spark fear within the employee.
This then raises the question of who qualifies as a “close relative”. As per section 106B(3) and section 12 of the Act, a “close relative” is a person who:
- Is a spouse, de facto partner (including a former spouse or de facto partner), child, parent, grandparent, grandchild, or sibling of the employee; or
- Is a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
- Is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
Following the Bill, this definition has been extended to include:
- Intimate partners of the employee, both past and present, irrespective of whether they resided with the employee.
- Any and all members of an employee’s household, irrespective of whether they do or don’t have relation to the employee.
By broadening this definition, the 2.2 million Australians who have experienced violence from an intimate partner, who did not meet the definition of a spouse or de-factor partner, can now access this 10-day leave entitlement to seek support and relief.
- Use of family and domestic violence leave
Section 106B(1) of the Act authorised employees to use this leave entitlement when they needed to “deal with” family and domestic violence. This section held some examples of what “dealing with” family and domestic violence was, including making safety arrangements, attending court hearings, and accessing police services.
Following the Bill, these examples will be amended to include attending counselling sessions, medical appointments, financial consultations, and meetings with legal practitioners.
By broadening these examples, it clarifies how and when employees can access this leave. For example, an employee who seeks counselling or therapy for mental health issues, related to family and domestic violence, will now not be taken to be on personal or carers leave, but rather family and domestic violence leave.
When do these changes commence for large and small business?
To ensure that businesses have sufficient time to make adjustments to their payroll system, policies and procedures, these changes will not commence until 1 February 2023 for large businesses and 1 August 2023 for small businesses.
This then raises the question of “what makes a business small or large?” According to section 23 of the Act, a small business is that which employs less than 15 people (excluding casual employees unless they work regularly and systematically). Hence, if a business employs 15 or more permanent or regular and systematic casual employees, they qualify as a large business and therefore they must provide this entitlement from 1 February onwards.
Jane is employed by a large business and commenced employment on 1 October 2020. Jane can now access 10 days paid family and domestic violence leave on 1 February 2023. The 10 days will reset on 1 October 2023 and then annually thereafter on 1 October of each year.
What will these changes mean for my business?
- You’ll need to create a supportive work environment
Family and domestic violence is a sensitive issue that not all employees will feel comfortable discussing. Therefore, we encourage employers to foster a supportive workplace environment which will empower their employees to speak up and seek help when they need it.
- Stay up to date on employee entitlements – and make sure your employees do too!
As employers, you have a responsibility to monitor and maintain an employee’s leave balance. With this, you must understand and therefore inform your employees of how and when you will reduce and increase this balance.
As outlined above, family and domestic violence leave is a paid 10-day entitlement that employees receive in full upon their yearly anniversary with the business.
- You’ll need processes to maintain confidentiality
As outlined within section 106C of the Act, employers must be proactive in their management of information or evidence regarding family and domestic violence. This information should remain confidential unless otherwise required by law.
We recommend informing your staff of this focus on confidentiality as it will often act as a driving factor for seeking support.
If this article has raised any concerns for you or someone you know, please contact these free support services:
DV line – 1800RESPECT (1800 737 732)
Beyond Blue – 1300 22 4636
Mensline – 1300 78 99 78
Lifeline – 13 11 14
If this information has raised any further questions, or you have another matter you need advice on, please reach out to the team at FCB for a confidential discussion. You can call us on 02 9922 5188 or email us at firstname.lastname@example.org .