Apr 3, 2023 Joel Hernandez

Family and Domestic Violence Leave becomes law

The National Employment Standards provide employees with an entitlement family and domestic violence leave.  New changes will require employers to provide paid leave to all employees.

From 1 February 2023, employees of non-small business employers (employers with 15 or more employees) are able to access 10 days of paid family and domestic violence leave per year. This includes part-time and casual employees.

Employees employed by small business employers (employers with less than 15 employees) can access paid leave from 1 August 2023, and may continue to access 5 days of unpaid family and domestic violence leave until then.

Family and domestic violence means violent, threatening or other abusive behaviour by certain individuals known to an employee that both seeks to coerce or control the employee, and causes them harm or fear.

To access paid family and domestic violence leave, the individual could be:

• an employee’s close relative
• a member of an employee’s household, or
• a current or former intimate partner of an employee.

As mentioned above, the individual needs to be a close relative, such as an employee’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, or sibling.  Close relative also encompasses an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, as well as a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Some key considerations for employers are that:

• All employees, regardless of their full time, part time or casual status will have access to 10 days of paid leave over a 12 month period. There is no pro-rata for casual or part-time staff;
• Staff can access their 10 days immediately. Entitlement to this leave does not accrue gradually as happens with other leave;
• If leave is not used, it will lapse. A new 10 day entitlement will arise every year on each staff member’s work anniversary.
• While employers need to keep a record of leave balances and any leave taken by team members, pay slips must not mention family and domestic violence leave, including any leave taken and leave balances. This is to reduce the risk to an employee’s safety.
• Employers may request evidence of the requirement to take family and domestic violence leave and should keep this confidential.

There will be an independent reviewed of these requirements after twelve months to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.

There is a helpful employer guide provided by the Fair Work Ombudsman.  These rules will result in employers having to make changes to policies as well as employee contracts.