Global Compliance Desk – Australia

Australia: Amendment to Family and Domestic Violence Leave

Effective February 1, 2023, employees shall be entitled to 10 days of paid family and domestic violence leave. The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 amends the Domestic and Family Violence leave under the Fair Work Act 2009 (Cth) (FWA).

Current Legislation – Under Section 106 A of the Fair Work Act, 2009, an employee is entitled to 5 days of unpaid family and domestic violence leave in every 12-month period. 

New Leave Entitlement

Entitlement to 10 days of Paid 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.

Commencement Period of Leave Entitlement 

The amended paid domestic and family violence leave shall be available to the employee from – 

  • February 1,  2023, for employers with 15 or more employees (medium or large business); and
  • August 1, 2023, for employers with less than 15 employees (small businesses). 

Employees who start their employment on or after the date that the paid leave entitlement can access the full 10 days from their first day onwards. Existing employees will be able to access 10 days of leave from the commencement of the new leave provisions and the leave shall subsequently renew on the employee’s work anniversary. The leave cannot be accumulated and carried over to the next year if the employee does not utilize them in the current year. 

Who can take Paid Family and Domestic Violence Leave?

Employees (including casual and part-time employees) shall be entitled to paid family and domestic violence leave, in order to deal with the impact of violence, and as such cannot deal with the issues outside their regular working hours. This includes – the employee making arrangements for their safety, or the safety of a close relative (including relocation), attending court hearings, accessing police services, counseling, and medical appointments, etc.

Expanding the definition of “Family and Domestic Violence”

The FW Act under section 106B(2) currently defines “family and domestic violence” to mean “violent, threatening or other abusive behavior by a close relative of an employee that seeks to coerce or control the employee or causes the employee harm or to be fearful”. 

The amendment has extended the definition of family and domestic violence to include the conduct of “a member of an employee’s household, or a current or former intimate partner of an employee”.

Payment for Leave

Employers will be entitled to pay family and domestic violence leave as follows:

  • Full-time and part-time employees at their full rate of pay; and
  • Casual employees at their full rate or pay for the hours they were rostered to work in the period they took leave.

Evidentiary Requirements

Employers have the right to request proof that an employee needs to take domestic and family leave. Employers can only use this information to confirm that the employee has a legitimate request for leave. Employers are not prohibited to disclose the information if the disclosure is required by law, is necessary to safeguard the life, health, or safety of the employee or another person, or is made with the employee’s consent.

Failure to comply with the proposed paid family and domestic violence leave provisions will result in violations of the civil remedy provisions under Part 4-1 of the FW Act, subjecting employers and other people, including managers, to hefty fines and penalties.

Takeaway

Employees can still access 5 days of unpaid family and domestic violence leave until the new paid leave entitlement becomes available to them. But, effective February 1, 2023, employers must make sure they abide by the new amendment and offer enhanced benefits to the appropriate employees by educating and training, reviewing and updating systems, policies, and procedures to ensure compliance, and putting in place record-keeping procedures to keep track of leave taken.

Bhumi Hitesh Soni

ABOUT THE AUTHOR

Bhumi Hitesh Soni

A labor and employment lawyer at Replicon who specializes in global compliance. Replicon provides award-winning products that make it easy to manage your workforce. Replicon is an industry leader in global compliance and has a dedicated team which pro-actively monitors international labor regulations for ensuring proper adherence with specific country rule requirements.

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