What you need to know.

Under the National Employment Standards, all employees in the Fair Work system will soon be entitled to 10 days of paid family and domestic violence leave in a 12-month period.   The new paid leave entitlement will be available to employees from:

• 1 February 2023, for non-small business employers (employers with 15 or more employees on 1 February 2023)
• 1 August 2023, for small business employers (employers with less than 15 employees on 1 February 2023).

The full 10 days of paid leave will be accessible upfront, meaning it doesn’t need to be accrued over time and won’t carry over from year to year if it isn’t used.   This new entitlement will replace the existing entitlement to 5 days of unpaid family and domestic violence leave. Employees can still access the existing entitlement until the new paid leave entitlement becomes available to them. Under the new leave provisions, an independent review will take place 12 months after the implementation to consider the impacts on small businesses, sole traders and people experiencing family and domestic violence.

Who gets to access the Leave?

All employees in the Fair Work system (including part-time and casual employees) will be entitled to 10 days of paid family and domestic violence leave in a 12-month period. This new entitlement will replace the existing entitlement to 5 days of unpaid family and domestic violence leave under the National Employment Standards.

How the leave renews

The leave renews every year on each employee’s work anniversary. It doesn’t accumulate from year to year if it isn’t used.

Employees who start on or after the date that the paid leave entitlement becomes available at their new workplace can access the full 10 days from their first day. The leave will renew on their work anniversary.

Employees who are already employed when the paid leave entitlement starts in their workplace can access the full 10 days on the relevant start date. The leave then renews on the anniversary of when they started working for that employer (not on the anniversary of the relevant start date).

Taking family and domestic violence leave

Employees (including part-time and casual employees) can take paid family and domestic violence leave if they need to do something to deal with the impact of family and domestic violence and it’s not practical for them to do so during their work hours.

This could include, for example, the employee:

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

Meaning of family and domestic violence

Under the new provisions, family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household that both:

• seeks to coerce or control the employee
• causes them harm or fear.

In this circumstance a close relative is defined as an employee’s:

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

Payment for leave

Full-time and part-time employees can take paid family and domestic violence leave at their full pay rate for the hours they would have worked if they weren’t on leave.

Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.

An employee’s full pay rate is their base rate plus any:

• incentive-based payments and bonuses
• loadings
• monetary allowances
• overtime or penalty rates

Interaction with other paid leave

An employee can use paid family and domestic violence leave during a period of paid personal/carer’s or annual leave. If this happens, the employee is no longer on the other form of paid leave and is taking paid family and domestic violence leave instead. The employee needs to give their employer the required notice and evidence.

Notice and evidence requirements

If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started. An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence and it’s not practical to do that outside their hours of work.

An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:

• the employee consents
• the employer is required to deal with the information by law, or
• it’s necessary to protect the life, health or safety of the employee or another person.

The employer can’t use the information for other purposes, including to take adverse action against the employee.

All other rules about notice and evidence are the same as the currents rules for taking unpaid family and domestic violence leave.

If you need help with a strategy on how you are going to manage this within your business, please let us know. contact@nowactually.com.au