1 February 2023 saw a key change in Family and Domestic Violence Leave rights for workers. The changes are happening in two stages:
1 February 2023: full time, part time and casual employees of ‘non-small business employers’ (being employers with 15+ employees), are entitled to 10 days of paid family domestic violence leave annually.
1 August 2023: employees of ‘small business employers’ (being employers with fewer than 15 employees), are entitled to 10 days of paid family domestic violence leave annually.
The key considerations with this entitlement are:
The employee is entitled to the leave if:
they are experiencing family and domestic violence; and
they need to do something to deal with the impact of the family and domestic violence (the Fair Work Act includes examples of “arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals”); and
it is impractical for them to do that task outside the employee’s work hours.
Family and domestic violence is defined as “violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that:
seeks to coerce or control the employee; and
causes the employee harm or to be fearful.” (s106B(2) Fair Work Act 2009).
A close relative of the employee is defined as “a person who:
is a member of the employee’s immediate family; or
is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.” (s106B(3) Fair Work Act 2009).
The leave is a minimum entitlement for all employees falling under the “National Employment Standards” (NES). An employer cannot contract out of providing it to such employees.
The entitlement does not accrue from year to year and is available, in full, at the start of each 12 month period of the employee’s employment.
The leave can be taken in any period of time as needed, anywhere from less than a day to a 10 day block.
To be entitled to the leave, the employee must comply with the following notice requirements:
as soon as practicable (which, in some circumstances, may be after the leave has commenced), the employee must provide the employer with notice of taking such leave and the expected period of leave; and
if requested by the employer, the employee must provide evidence that would satisfy a reasonable person that the leave is taken because “the employee needs to do something to deal with the impact of the family and domestic violence” and that “it is impractical for the employee to do that thing outside the employee’s work hours”. (s. 106B(1) Fair Work Act).
We recommend that business owners familiarise themselves with the new entitlements and consider whether any changes need to be made to their documents, including the implementation of a policy outlining the procedure to apply for such leave.
If you need assistance in relation to employment law matters, please contact Jenkins Legal & Advisory on 02 4929 2000 or email office@jenkinslegal.com.au.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
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