For many, the workplace serves as a haven, a respite from the tumultuous turbulence of their personal lives. However, situations characterised by trauma, such as domestic and family violence, can greatly affect this sanctuary, significantly impacting productivity and overall well-being.
Recognising this crucial issue, Australia has taken a monumental step forward by introducing ‘paid family and domestic violence leave’ for employees.
What is Family and Domestic Violence Leave?
Family and Domestic Violence leave, a relatively recent addition to the national employment standards, is specifically designed to aid individuals grappling with the repercussions of family or domestic violence. This initiative provides employees with the time and space to manage and mitigate the impacts of such violence without the added pressure of job security.
Who is entitled to Family and Domestic Violence Leave ?
This form of leave is available to all employees, regardless of their employment status—full-time, part-time, or casual. The onus is on the employee to prove their eligibility for this leave by providing evidence of the violence they’re facing.
An employee may take paid family and domestic violence in the following circumstances:
- 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 work hours.
The Legislation Behind Paid Family and Domestic Violence Leave
The Albanese Labour Government, following their victory in the May 2022 federal election, swiftly proceeded to legislate key employment and workplace relations reforms centred around family and domestic violence leave.
Before this amendment, victims were often faced with the untenable choice of taking unpaid leave, which could exacerbate financial hardships or continuing to work despite their trauma and challenges.
This change acknowledged the reality that victims of domestic violence often incur additional expenses, such as legal fees, medical bills, and relocation costs, and that paid leave can provide crucial financial stability during such tumultuous times.
The culmination of the government’s reform efforts was the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 to Parliament on July 28, 2022.
This legislation underwent several iterations before the final text was agreed upon by the House of Representatives and the Senate, resulting in the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.
When do the New Family and Domestic Violence Leave Provisions Commence?
The implementation of paid family and domestic violence leave varied based on the employer’s size.
For larger businesses with more than 15 employees, paid leave took effect on February 1, 2023. However, to allow for a smoother transition, smaller businesses with 15 or fewer employees had until August 1, 2023, to implement this leave entitlement.
Note: All businesses across Australia are now mandated to allow for 10 days of paid domestic violence leave.
Key Amendments and Provisions
From Unpaid to Paid Leave
The most significant change brought about by this amendment is the transition from five days of unpaid family, and domestic violence leave to 10 days of paid leave. This shift doubles the duration of the leave and provides financial support to employees during this challenging time, reducing their burden.
The entitlement to 10 days of paid leave is available in full at the start of each 12-month period of an employee’s employment, and does not accumulate from year to year.
Expansion of the Eligible Workforce
In tandem with this change, the range of employees eligible for this leave has broadened. The amendment encompasses casual workers and, in due course, aims to extend this benefit to non-national system employees.
Enlarging the Definition of Domestic Violence
The Act has also expanded the definition of domestic violence, now encompassing abusive behaviour perpetrated by an employee’s close relative and a member of the employee’s household or a current or former intimate partner.
Extension to Non-National System Employees
The paid family and domestic violence leave is set to extend to non-national system employees, aligning with the ratification and enforcement of the International Labour Organisation Convention on Violence and Harassment (No. 190). This is predicted to occur on or before February 1, 2025.
What are Employer Obligations and Employee Rights?
Employer Obligations
As an employer, you are responsible for providing this leave to your employees when requested, unless there are valid business reasons for not doing so. Moreover, you must ensure the confidentiality, privacy, and job security of the employee concerned.
Employee Rights
An employee may 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 work hours.
Employees have the right to request this leave by providing evidence such as a police report, a statement from a medical practitioner, or a social worker to substantiate their claim. However, they are not obligated to disclose the specifics of the violence they’re facing.
The Monetary Aspect of Family & Domestic Violence Leave
The payment received during this leave mirrors the earnings an employee would have accrued had the employee been at work. For full-time and part-time employees, this equates to their full pay rate for the hours they would have been at work. Casual employees will be paid at their full pay rate for the hours they were rostered to work during their leave.
The corresponding pay slip to the leave taken must not identify that the employee took paid family and domestic violence leave.
Key Takeaways
The introduction of paid domestic violence leave is a monumental stride forward in Australia’s labour laws. It signifies societal recognition of the devastating impacts of family and domestic violence, offering support to all employees, including part-time and casual workers.
As an employer, it is your responsibility to implement these changes, ensuring the well-being of your employees. As an employee, it is your workplace right to avail of this leave, providing an opportunity to focus on personal safety and recovery without the added stress of losing your job.
If you need assistance navigating these new employment laws, contact the WilliamsonBarwick team today.
FAQs
Do You Pay Super on Family & Domestic Violence Leave?
Superannuation contributions in Australia are typically based on ordinary-time earnings (OTE). If the domestic violence leave is paid, then superannuation contributions would generally apply, as they would for other types of paid leave.
However, you should consult with the Australian Taxation Office (ATO), an employment lawyer, or an accountant to get specific guidance for your situation.
What Does FDV Leave Mean?
FDV leave stands for “Family and Domestic Violence Leave.” It refers to the leave entitlement provided to employees who are experiencing family and domestic violence.
This leave allows affected individuals to take time off to address issues arising from the violence, such as seeking medical attention, pursuing legal proceedings, or arranging safe housing. In Australia, the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 mandated paid FDV leave for employees across the country.
How Does the New Legislation Define Family and Domestic Violence?
Family and domestic violence means violent, threatening or other abusive behaviour by a close relative of a person, a member of a person’s household, or a current or former intimate partner of a person, that seeks to coerce or control the person and causes the person harm or to be fearful.
This includes actions that cause physical, psychological, or emotional harm, that threaten or coerce the victim, or that control or dominate the victim, leading to fear for their safety or the safety of someone else. The definition encompasses a range of behaviours, including physical violence, sexual assault, emotional manipulation, financial control, and stalking, among others.
