Violence in the home is a major health, welfare, and social issue affecting many Australians.

An estimated 3.6 million Australian adults report experiencing physical and/or sexual family domestic violence since age 15, according to the Australian Bureau of Statistics.

Minister of Social Services Amanda Rishworth states that employers must also play a role.

"The connection with work, the payment of wages, is really important in keeping stability in the lives of those experiencing violence when they are attempting to leave a domestic violence situation," said Minister of Social Services Amanda Rishworth.

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 amended the Fair Work Act 2009 and has replaced the five unpaid leave days for family and domestic violence outlined in the National Employment Standards. 

Employees benefit from the changes to the law because the definition of domestic violence now includes the actions of a current or former partner or a household member.

The Paid Family and Domestic Violence Leave amendments mean quite a few changes for the employer and employee. In this article, we uncover when the new amendments apply, what paid family and domestic violence leave is, who will be affected by the new laws, and how employers should respond to the legislative changes.

When do the amendments to Family and Domestic Violence Leave apply?

The amendments to Family and Domestic Violence leave are effective on two separate dates depending on the size of a business. 

• The new laws are effective on 1 February 2023 for non-small businesses with at least 15 employees. 
• Employers with fewer than 15 employees have a little more time with the new laws in effect on 1 August 2023.
• Until new paid leave entitlements are available, employees will continue to be entitled to the 5 days of unpaid Family and Domestic Violence Leave.
• Independent reviews will be conducted after 12 months to assess the impact on small businesses, sole traders, and those experiencing family violence.

Paid Family and Domestic Violence Leave - What is it?

A family or domestic violence incident is defined as violent, threatening, or abusive behaviour directed at an employee by a former or current intimate partner, a household member, or a close relative in an effort to coerce or control them. 

A close relative of an employee is considered the following: 

• Spouse or former spouse
• Current or former de facto partner
• Child
• Parent/s
• Grandparent
• Grandchild
• Sibling
• Family members of an employee's current or former partner, including siblings, children, parents, and grandparents
• Individuals who are related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

The following types of behaviour are examples of family and domestic violence:

• Financial abuse
• Stalking
• Emotional abuse
• Sexual assault
• Physical violence
• Controlling behaviour

Who is entitled to Paid Family and Domestic Violence Leave?

Employees covered by the Fair Work System, including full-time, part-time, and casual employees, are entitled to ten days of paid leave for domestic and family violence. For every 12 months of employment, employees will receive ten days paid for family and domestic violence; the entitlement is provided up-front at the start of each 12-month period. The leave does not accumulate like annual leave.

Employees who started employment on or after 1 February 2023 are entitled to the full 10 days from their starting day. 

How is pay calculated for Family and Domestic Violence Leave?

The type of employment determines the amount of pay for paid family and domestic violence leave.

• Both part-time and full-time employees are entitled to receive full pay for the hours they would have worked if they did not need to take family or domestic violence leave.
• Casual employees are paid their full pay rate for the hours they were scheduled to work if they need to take leave due to family or domestic violence.

Family and Domestic Violence Leave pay slip data and record keeping

• The employer must ensure that any information regarding paid family and domestic violence leave balances or leave taken is not included in payslips. This safety measure aims to reduce any risk for employees that need to use their family and domestic violence leave.
• Employers must keep a record of all employees' leave balances and leave taken for Family and Domestic Violence. 

What are the employee's obligations when taking Paid Family and Domestic Violence Leave?

As soon as practicably possible, the employee should notify their employer they are taking family and domestic violence leave and how long they expect to be away from work. The notification can be after the employee has taken the leave. 

Employers may request evidence that shows the leave taken was to deal with the impact of family or domestic violence and that it was not feasible to manage this outside of working hours. Evidence can be documentation issued by the police, a court of law, family support services or a statutory declaration.

The employer can only use the information provided to determine whether the employee is entitled to family and domestic violence leave. 

The information provided may also be used for the following purposes:

• An employer may use the information with the employee's consent.
• The employer is required to provide the information under the law.
• The employer may use the information for other purposes to protect an employee's life, safety, or health, or the life, safety, and health of others. 

When does Family and Domestic Violence Leave apply?

Employees (including part-time and casual employees) can take this paid leave if they need to do something to deal with the impact of family and domestic violence. For example:

• Making arrangements for their safety or the safety of a close relative (including relocation)
• Attending court hearings
• Accessing police services
• Attending counselling sessions, medical appointments, financial consultations, or legal consultations.

Key takeaways: 

The Paid Family and Domestic Violence Leave legislation key points:

• On 1 February 2023, the new paid family and domestic violence leave is available to employees for businesses with at least 15 employees or over.
• The start date for paid family and domestic violence leave for employers with less than 15 employees is 1 August 2023.
• Employees are entitled to 5 days of unpaid family and domestic violence leave until the new paid leave entitlements are available. 
• Over 12 months, full-time, part-time, and casual employees can take up to 10 days of paid family and domestic violence leave. 

• The leave is pro-rated for part-time or casual employees. 

• No matter how many hours employees work per week, they are entitled to 10 days of family and domestic violence leave.

• Employees who started employment on or after 1 February 2023 are entitled to the full 10 days from their starting day. 
• The paid family and domestic violence leave renewal is on the employee's start date anniversary, not on the 1 February every year. 
• The 10-day entitlement does not accumulate year after year, like annual leave.
• An employee's pay slip must not contain any information regarding paid family and domestic violence leave as of 1 February 2023.

For more information on paid family and domestic violence leave, visit fairwork.gov.au.

Employers can support employees experiencing family and domestic violence in several ways.

Supporting employees experiencing abusive behaviour is essential at this challenging time. 

Firstly, you should dial 000 if you or someone you know is in immediate danger and ask for ambulance or police assistance.

Help is also available from various sources. Here are a few that you can share with your employees: 

• National Sexual Assault, Domestic Violence Counselling Service 24-hour helpline 1800 RESPECT on 1800 737 732
• FullStop Australia 1800 FULLSTOP (1800 385 578)
• Rainbow Sexual, Domestic and Family Violence Helpline on 1800 497 212 
• Family Violence Crisis and Support Service on 1800 608 122
• Mensline Australia - 1300 789 978
• Lifeline - 13 11 14
• Services Australia
• Beyond Blue - 1300 22 4636
• Men's Referral Service on 1300 766 491 or the Don’t Become That Man helpline on 1300 243 413