How to handle new family and domestic violence leave

Australia’s employment laws have undergone a major upheaval with the Commonwealth Government implementing legislation where millions of Australian workers now have access to 10 days of paid family and domestic family violence leave.

These changes came into effect on 1 February 2023 for businesses with over 15 employees, and on 1 August 2023 for those with 15 or fewer. The leave is part of the National Employment Standards (NES) and no worker can have an agreement which excludes this leave entitlement.

Employers need to be aware of the new laws and be sure that they have appropriate measures in place to allow employees the leave that they are legally entitled to.

“Employers cannot refuse a legitimate application for family and domestic violence leave. In that sense, managing this leave will be akin to managing sick leave,” Nick Maley, partner, Holman Webb Lawyers Workplace Relations Group, said.

“An employee needs to give notice of the leave as soon as practicable — this may be after the leave has started. They must also tell the employer how long they expect this leave to last.”

This leave may be taken as 10 consecutive days or spread out across a year, he said. “It does not accrue. It resets at the start of the anniversary of an employee’s employment.”

The reasons

Employers need to be aware of why an employee can request leave and what practical application of that leave entails; however, there are circumstances where an employer can refuse leave.

“Employers may request proof for the purposes of verifying the application,” Maley said. Examples of reasons an employee can cite for this leave include:

• 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.

“If the employer does not receive evidence that satisfies it that the employee has a need for the leave, the leave may be refused,” he said.

If an employee believes the refusal was unjust or improper, they can bring a claim against the employer in the Fair Work Commission within 21 days of the refusal.

“If the commission is satisfied that the leave request was reasonable, it may order the employer to provide the leave, and order the payment of civil penalties for refusing the leave,” said Maley.

“It is worth remembering that the 10 days of paid family and domestic violence leave is an employee right, and that refusal can only occur if the employer is not satisfied by the evidence provided by the employee. Employers cannot refuse a request for any other reason.”

How will employers manage payroll?

There are rules for employers to follow to ensure employee rights are granted when needed.

“Employers must grant and pay an employee the requested amount of paid family and domestic violence leave when the request is justified. It will be akin to payment of sick leave,” Maley said.

“For full and part-time workers, this would be the amount of time they would have worked in this period. Casual workers only need to be paid for days that they were rostered on.

“Employers have no recourse to recover the additional paid leave from any government fund.”

Different types of leave

Family and domestic violence leave is different to sick leave and human resources should keep records of all leave an employee has taken.

“The biggest difference with other kinds of leave, is that paid domestic violence leave doesn’t accrue over time,” Jo Alilovic, director, 3D HR Legal, said.

“Instead, the full 10-day entitlement is available from the date the leave commences.”

Also, the leave doesn’t accrue from year to year if it’s not used, so entitlement resets at the full 10 days on the employee’s anniversary date of employment, she said.

“In order to make managing this leave as simple as possible, employers could give consideration to implementing a workplace policy — including information about the availability of the leave in inductions and ongoing communications — and focus on creating a workplace culture that makes it easier for employees to raise concerns.”

Employers have until June 6, 2023, to ensure that they are compliant with all new legislative changes with regards to the Fair Work laws in Australia.

Payroll issues

The Fair Work Act clearly outlines what is required from an employer’s perspective for the new family and domestic violence leaves.

“The Fair Work Act specifically provides that employers must not include any information on a payslip which identifies that the purpose of the leave is due to family or domestic violence, in order to protect the safety of the individual,” Alilovic said.

However, employers are still required to keep records of leave balances and any leave taken, she said.

“To make sure they are meeting these requirements, employers will need to consider how requests for this type of leave are made, who in the organisation will keep these records, and how that can be limited to maintain the confidentiality of the individual employee.”

Maley adds that “for full and part-time workers, this would be the amount of time they would have worked in this period. Casual workers only need to be paid for days that they were rostered on.