Understanding Family and Domestic Violence Leave in Australia
By Paolo, 11.03.2024
Family and Domestic Violence Leave is a paid entitlement available to employees to help them deal with issues of domestic violence.
Domestic Violence includes abusive behaviour by an employee’s family or household member that seeks to coerce or control the employee and causes them harm or fear.
Family and Domestic Violence Leave was originally introduced into the Fair Work Act on 31 August 2018 and added to the National Employment Standards. At that time, the Family and Domestic Violence Leave entitlement was made up of 5 unpaid leave days per year.
In 2023, Family and Domestic Violence Leave became a paid entitlement made up of 10 days per year.
The new paid entitlement was progressively rolled out to Australian Businesses across two stages:
- From 1 February 2023 to Non-Small Business Employers (businesses with over 15 employees), and
- From 1 August 2023 to Small Business Employers (businesses with 15 employees or less).
Together with Annual Leave and Personal/Carer’s Leave, Family and Domestic Violence Leave is part of the Fair Work National Employment Standards. This means as a core entitlement, it cannot be removed or reduced from the employee’s basic working rights through any Employment Agreement.
This blog article covers the key aspects of the Family and Domestic Violence Leave entitlement in Australia.
Please note the rights and requirements outlined in this blog relate to the Family and Domestic Violence Leave entitlements stipulated by the Fair Work Act. Additional Leave or support programs offered by certain employers on top of the entitlements set out by the National Employment Standards may have different treatments explicitly outlined in the Employment Agreement.
Who is entitled to Family and Domestic Violence Leave?
Family and Domestic Violence Leave is available to all employees regardless of their employment basis.
This includes full-time, part-time and casual employees who have been ‘rostered’ (i.e. have accepted an offer to work).
How much Family and Domestic Violence Leave is an employee entitled to?
Employees can access a maximum of 10 days per year of Family and Domestic Violence Leave.
How is Family and Domestic Violence Leave accrued?
The 10 days of Family and Domestic Violence Leave are available upfront at the start of the employment and must be reset on the employee’s anniversary.
Unlike Annual and Personal Leave, Family and Domestic Violence Leave accruals do not roll over to the following year. The leave entitlement is limited to a maximum of 10 days per year.
For example, if an employee took 2 days of Family and Domestic Violence Leave in 2023, on the day of their employment anniversary in 2024, the accrued days would simply reset to 10 days.
How can Family and Domestic Violence Leave be taken?
Family and Domestic Violence Leave can be taken by an employee to deal with the impact of family and domestic violence, including:
- making arrangements for their safety, or the safety of a close relative (including relocation);
- attending court hearings;
- accessing police services or other support services;
- attending healthcare, such as counselling, therapy or doctor’s appointments;
- attending appointments with financial counsellors or legal professionals.
The leave can be taken for a few hours, a full day or week, or a single continuous 10-day period.
The leave can be taken when the employee is the victim of domestic violence or to support a family or household member.
The definition of family or household member related to Family and Domestic Violence Leave is the same that applies to Personal/Carers Leave.
This includes an employee’s:
- spouse/de facto partner or former spouse/de facto partner;
- child;
- parent and grandparent;
- grandchild;
- sibling.
How is Family and Domestic Violence Leave paid and taxed?
Family and Domestic Violence Leave is paid at the employee’s base rate of pay for Ordinary Hours worked.
The leave payment is subject to standard PAYG withholding tax calculations. As Family and Domestic Violence Leave is deemed as Ordinary Time Earnings, the statutory rate of Superannuation Contribution Guarantee is also payable on this entitlement.
Family and Domestic Violence Leave cannot be cashed out and is not paid out at termination of employment.
Employers are required to report the period of Family and Domestic Violence Leave paid to the employee as ‘Other Paid Leave’ to the ATO via Single Touch Payroll.
Displaying Family and Domestic Violence Leave information on the Employee’s payslip
One of the key concerns raised is the importance of keeping the payment of Family and Domestic Violence Leave private and away from the payslip. This is in an effort to further protect the victim from being exposed to the perpetrator’s family member if gaining access to their payslip.
In response to these concerns, Fair Work Australia has reviewed the Fair Work Act and introduced regulations that prohibit employers from displaying any information about Family and Domestic Violence Leave on employees’ payslips.
These regulations remove ambiguity for employers concerning how to record information on Family and Domestic Violence Leave on payslips, including:
- a statement that an amount paid to an employee is a payment in respect of the employee’s entitlement to paid Family and Domestic Violence Leave; and
- a statement that a period of leave taken by the employee has been taken as a period of paid family and domestic violence leave; and
- the balance of an employee’s entitlement to paid family and domestic violence leave.
A note included in the regulations indicates that the leave can be recorded in employees’ payslips as: “special leave, miscellaneous leave or leave—other”.
Managing requests for Family and Domestic Violence Leave
Due to the sensitive nature of the leave, employers are prevented from setting up policies and procedures regarding the period of notice an employee must provide to their employer on their intention to take the leave.
The Fair Work website simply states: “Employees must notify their employer about their need to take Family and Domestic Violence Leave as soon as it’s practical, and, whenever possible, provide their employer with an estimate of the length of time they plan to be away from work”.
Employers are entitled to request supporting evidence of the leave. This includes:
- family violence support service documents;
- a statutory declaration;
- documents issued by the police or by a court;
However, they should exercise caution when asking employees about their family situation and risking to breach privacy laws. Fair Work has dedicated educational resources to help employers deal with discussing the issue of domestic violence with their employees.
These resources can be found at: https://www.fairwork.gov.au/tools-and-resources/online-learning-centre
Finally, on 15 December 2023, The Closing Loopholes Bill introduced further protection measures for those employees experiencing domestic violence. Such measures are focussed on the protection of employees from adverse action, including:
- dismissal;
- changing an employee’s role and responsibility to their disadvantage;
- being treated differently from other employees.
Once an employee has exceeded the 10 days per year available for Family and Domestic Violence Leave, they can take any other form of paid or unpaid leave if they need additional days to deal with their situation.
Although employers are not required to pay for additional days under this entitlement, they cannot refuse to agree for the employee to take Annual, Personal or unpaid leave.
Conclusions and Tips for Employers
Family and Domestic Violence Leave is the latest paid entitlement introduced by Fair Work Australia as part of the National Employment Standards, and it’s designed to support those employees who experience or are exposed to domestic violence.
Knowledge, awareness and planning can help small business employers support their employees while meeting their workplace obligations.
There are many benefits for a workplace when the health, safety and well-being of employees are prioritised, including:
- improving outcomes for employees experiencing family and domestic violence;
- improving productivity, staff engagement and work satisfaction;
- reducing illness and absenteeism;
- reducing staff turnover, resulting in lower recruitment and training costs, and
- reducing legal liabilities.
Employers should take the following steps to ensure their workplace is compliant with this entitlement:
- Understanding their legal obligations;
- Developing a workplace policy to support employees experiencing family and domestic violence, or
reviewing their current domestic violence policy to ensure it is still in line with the latest Fair Work requirements; - Encouraging communication and support in their workplace to create a safe environment for their employees;
- Updating their payroll systems to include Family and Domestic Violence Leave available balances for all their employees;
- Educating themselves on how to deal with this issue within the workplace;
- Communicating with their employees about this new entitlement and providing them with information on where they can get additional support;
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References
https://www.fairwork.gov.au/leave/family-and-domestic-violence-leave
