Exploring the new paid family and domestic violence leave entitlement

Exploring the new paid family and domestic violence leave entitlement

25 January 2023

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The impacts of family and domestic violence are far-reaching. In addition to the personal toll felt by those experiencing violence, there is also the effect it has on their professional lives. The new family and domestic violence leave entitlement is a welcome change to protect workers from ever having to make a choice between earning a wage and protecting themselves and their families from domestic violence.

The extension from 5 unpaid days to 10 paid days has attracted a lot of attention and this article explores these changes, along with some immediate actions organisations can take to ensure they are compliant.

What is changing?

Currently, under the National Employment Standards (NES), all employees (including part-time and casual employees) are entitled to 5 days of unpaid family and domestic violence (FDV) leave each year. However, soon this will increase to 10 days paid leave for all employees in the Fair Work system. This new entitlement will take effect from 1 February 2023 for non-small business employers (15 or more employees) and from 1 August 2023 for small business employers (less than 15 employees).

Why is this important?

As former Sex Discrimination Commissioner Elizabeth Broderick has said, “What affects employees affects employers.” 

Maintaining employment is a critical pathway to economic independence that helps enable people experiencing family and domestic violence to escape violent situations. Those experiencing violence have reported increased vulnerability to losing their job due to the impacts of family and domestic violence. Providing leave enables those experiencing violence to seek help, access support and escape dangerous situations (for example, by finding alternative accommodation or attending court hearings). 

Preparing for the new FDV leave requirements

The Fair Work Ombudsman (FWO), in collaboration with the Department of Employment and Workplace Relations (DEWR) is assisting small businesses to implement the paid FDV leave scheme by preparing updated resources for workers who are affected by these changes. It has also received additional funding to offer skills-based training and online courses, noting the heightened sensitivity surrounding FDV.

The FWO will also continue to work with key stakeholders to perform user testing and get feedback from various workplace participants (including survivors). 

How do employers prepare for the new changes?

Given the complexities and sensitivities surrounding FDV leave, organisations should take immediate action to prepare for these imminent changes. Below we highlight key considerations for businesses. 

• Review your instruments 
  It is important for all organisations to review their registered agreements, employment contracts and workplace policies. Across these instruments, if the FDV leave is less than the minimum entitlement under the NES, you will need to update your policies and procedures to ensure you are in compliance with the new legislation.
• Ensure employee confidentiality by updating payroll procedures
  Ensuring the safety of employees is imperative. As such, payroll functions have a responsibility to review and update their procedures to make sure all FDV disclosures and activities are handled sensitively and kept confidential. Failure to do so could have adverse consequences for their employee. An example of this is that employee’s pay slips must not contain any information relating to paid FDV leave.   From 4 February 2023, an amount paid to an employee for taking paid family and domestic violence leave has to be recorded on a payslip as:
  • ordinary hours of work; or
  • another kind of payment for performing work, such as an allowance, bonus or overtime payment.
• Familiarise yourself with the evidence requirements
  Employers can ask employees to provide evidence for as little as 1 day or less off work, and this also applies for FDV leave. Types of evidence that employers might receive are:
  • documents issued by the police service
  • court documents
  • family violence support service documents, or 
  • a statutory declaration.

Many employers often waive evidence requirements for this category of leave, wary of placing any additional barriers in the way of employees being able to access leave.

• Consider what other support might be needed
  Paid leave is often part of broader policy that organisations provide their employees experiencing violence. Under the Fair Work Act, employees experiencing FDV have a right to request flexible working arrangements, including changes to hours, patterns, locations and duties of work. Other forms of support organisations can provide include Employee Assistance Programs, changing contact information, security escorts, access to short term accommodation or cash grants.
• Ensure capability in key roles
  Accessing paid FDV leave will require employees to disclose that they are experiencing violence to their employer. It is important that there is the right capability within an organisation to appropriately respond in these situations, for example: 
  • people managers need to understand the types of support available and ensure it is simple and safe for employees to access;
  • those administering the leave should bewell-trained in maintaining confidentiality in systems and processes; and
  • all staff should be aware of support they can direct people to and how to respond with empathy.
• Break down the stigma
  Family and domestic violence is a topic that is shrouded in stigma, making it difficult for people to feel comfortable accessing support and seeking help. Finding ways to tackle stigma, educate people about family and domestic violence, raise awareness of support available and help co-workers know what to do when someone raises an issue with them all help create a culture where those experiencing violence will feel safe to seek help.

As an employer, you need to be aware of your legal responsibility and be prepared to explain to any employees affected by FDV about their entitlements and the options available to them. Knowledge, awareness and planning can help employers support and protect their employees and meet their workplace obligations. 

If you would like to discuss any of the aspects in this article, please contact any of the team listed below.