Family and Domestic Violence Leave becomes paid leave

All employees will become entitled to paid Family and Domestic Violence Leave in 2023. The current entitlement is five days of unpaid leave.

Who is entitled to leave?

All employees covered by the National Employment Standards (NES) are entitled to this leave. This includes part time and casual employees.

When does the leave apply?

Family and domestic violence leave is available where it is necessary for an employee to deal with the impact of family and domestic violence and it is impractical to do so outside their ordinary hours of work.

This may include matters such as making arrangements for their safety, or the safety of a close relative (including relocation), attending court hearings, accessing police services, attending counselling or attending appointments with medical, financial or legal professionals.

What is family and domestic violence?

Family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that seeks to coerce or control the employee and causes them harm or fear.

A close relative is an employee’s:

spouse or former spouse
de facto partneror former de facto partner
child
parent
grandparent
grandchild
sibling
an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, or
a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

How much leave is available and how does it accrue?

Ten days’ leave is available to all employees. This leave is not pro-rated for part time and casual employees.

The full amount of leave is available from the first day of employment. It does not accrue over the course of the year. If leave is not taken it does not carry over to the following year. On the anniversary date of employment the employee is recredited with ten days’ leave.

Existing employees should be credited with ten days’ leave on the relevant start date of the entitlement under the NES. The leave should then be recredited on the employee’s anniversary date each year, not on the start date of the NES entitlement.

Can I ask an employee for notice and evidence of the need for leave?

An employee is required to let you know as soon as possible of their need to take the leave. In many circumstances notice may not be possible. An employee may be able to give you advance notice of a court hearing, for example, but not of an emergency relocation. Common sense should be applied when considering what constitutes ‘as soon as possible’.

You can ask an employee to provide some evidence that the leave was required and that the circumstances of taking the leave fall under the NES entitlement. The evidence should be enough to convince a reasonable person the leave was necessary. Examples of evidence may be a court summons or notice, a police report, documents provided by a support service or a statutory declaration.

What are my privacy and confidentiality obligations?

Employers must take reasonably practicable steps to keep any information about an employee’s situation confidential when they receive it as part of an application for leave. Breaches of confidentiality in these circumstances may place an employee in danger.

The nature of leave being taken by the employee and any evidence provided to support the application should remain confidential. Evidence provided can be used to confirm the leave was necessary and for no other purpose.

The employee’s privacy must be respected and no adverse action can be taken against an employee for applying for or taking this leave.

The best way to manage sensitive information is to ensure you implement the Australian Privacy Principles even if they don’t apply to your organisation.

How does this leave fit with other paid leave?

This leave can be taken in conjunction with other forms of paid or unpaid leave. If an employee is on another form of paid leave and becomes eligible for Family and Domestic Leave they can request a change in the type of leave being utilised. The same notice and evidence requirements to show eligibility would apply to this request.

When does the entitlement commence?

All employers are currently required to provide employees with five days’ unpaid Family and Domestic Violence Leave under the NES under similar circumstances to those outlined above.

For Small Business Employers (those with 15 or fewer employees) the requirement to provide ten days’ paid leave commences on 1 August 2023.

All other employers will be required to provide the paid leave from 1 February 2023.

If you require assistance with the implementation of Family and Domestic Violence Leave please contact Belinda Sundaraj.