Effective from 1st Feburary 2023

In Australia, the Fair Work Act 2009 (FWA) grants employees various leave entitlements.

One such entitlement involves section 106A of the FWA which grants an employee five days of unpaid family and domestic violence leave each year.

However, section 106A and other provisions relating to family and domestic violence leave have recently been amended. This update seeks to summarise the recent legislative changes and their implications for Australian businesses.

When is an employee entitled to the family and domestic violence leave entitlement?

The family and domestic violence leave entitlement to apply to employees who may be experiencing family and domestic violence.

Family and domestic violence refer to behaviour by an employee’s close relative, spouse or de facto partner, that seeks to coerce or control the employee and causes the employee harm or to be fearful.

Employees may utilise the paid family and domestic violence leave when they need to deal with the impact of this violence and find it impractical to deal with it outside of their ordinary hours of work.

Examples of purposes for which an employee may take paid family and domestic violence leave include actions taken to arrange for their own safety or for that of a close relative such as relocation, attending urgent court hearings or accessing police services.

What are the recent changes?

As part of the recent amendments to the legislation, full-time, part-time and casual employees will now have access to 10 days of paid family and domestic violence leave in a 12-month period.

The employee is entitled to the full 10-day period upfront and will not have to accumulate it over time. The leave will also not accumulate if it is not used.

This will replace the existing entitlement to five days of unpaid family and domestic violence leave.

The definition of family and domestic violence has also been broadened. Previously, the entitlement applied to employees who were experiencing abusive behaviour from their close relative, spouse or de facto partner.

Once these amendments commence, however, abusive behaviour caused by members of an employee’s household or by an employee’s current or former intimate partner will also be classified as family and domestic violence.

The legislation will also provide a more extensive list of examples of purposes for which an employee may take paid family and domestic violence.

Notably, this includes attending counselling or attending appointments with medical, financial or legal professionals.

What are the implications of these amendments for employers?

It is important to remember that the entitlement to family and domestic violence leave under the FWA will supersede any registered agreements, employment contracts or workplace policies which offer less leave than that provided by the Act.

Employers must also ensure that pay slips do not indicate an employee’s paid family and domestic violence leave balance, whether they have taken their paid family and domestic violence leave or whether an amount paid to an employee is due to family and domestic violence leave.

Furthermore, contravention of the family and domestic violence leave provisions can give rise to civil liability and incur a maximum penalty of 60 penalty units or $11,095.2.

What are the notice requirements for an employee to access paid family and domestic violence leave?

Pursuant to section 107 of the FWA, employees must give their employer notice when they utilise the paid family and domestic violence leave.

The notice needs to be given to the employer as soon as practicable and can be provided after the leave has started. The notice must also advise the employer of the period or expected period of leave.

Employers may also require the employee to provide evidence that they are experiencing family and domestic violence.

The evidence must also satisfy a reasonable person that the purpose of the leave is to deal with the impact of the violence and that it is impractical for the employee to do such a thing outside the employee’s ordinary hours of work. An employee is not entitled to take paid family and domestic violence leave unless they comply with this requirement.

When will these changes commence?

These changes will take effect from 1 February 2023. If however, you are a small business employer, employing less than 15 employees on 1 February 2023, these changes will only be applicable from the 1st of August 2023.

These changes will also be independently reviewed after 12 months after its initial commencement to consider their impacts on small businesses, sole traders and people experiencing family and domestic violence.

If you wish to discuss these changes further or any matter pertaining to employment law, please do not hesitate to contact APAN or contact our lawyers directly:

Michael Bishop or Amelita Hensman at Pointon Partners Lawyers: 03 9614 7707 | E: general@pointonpartners.com.au