Employees of smaller businesses soon to be eligible
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 introduces several important changes for both employees and employers.
Since 1 February 2023, employees working within a non-small business (15 staff or more) have been able to access 10 days of paid family and domestic violence leave. Until now, this hasn’t been available to employees working for smaller businesses (less than 15 employees), but this is set to change on 1 August 2023.
Important implications for employers receiving a request for this type of leave
Firstly, an employee’s paid leave entitlement is available in full immediately, and resets on the employee’s work start date anniversary without accruing year-to-year or being pro-rata. This leave does not break an employee’s period of continuous service and counts as service when calculating accumulated entitlements such as paid annual leave. This paid leave also counts toward an employee’s hours worked in that week for the purpose of calculating overtime.
Family and domestic violence leave is a unique form of paid leave within the Fair Work system.
Employers have heightened confidentiality obligations
When receiving a request for this leave, employers are required to take reasonable steps to keep information about the employee’s situation confidential. This includes any information or evidence the employee discloses to the employer. Employers can disclose information only with the employee’s consent, if required by law, or otherwise necessary to protect a person’s health, safety, or life.
A failure to comply with this confidentiality provision gives rise to breach of the civil penalty provisions under Part 4-1 of the Fair Work Act, exposing employers and implicated individuals such as managers to significant monetary penalties and court orders.
Employers cannot record that family and domestic violence leave was taken onto the employee’s payslip, as this places the employee at heightened risk of reprisal. Employers can arrange with the employee to record the time taken off as another type of leave. Employers are advised to reassess their payroll procedures to accommodate for this confidentiality requirement.
Employers are entitled to request evidence from employees
Employers may request evidence from the employee to demonstrate they took a leave to deal with family and domestic violence. The type of evidence requested can include statutory declarations, documents issued by police or by the court, or family violence support service documents.
The employer may decline to provide the leave if the employee doesn’t provide evidence.
The 10-day family and domestic violence paid leave replaced five days of unpaid leave for such purposes under the National Employment Standards.
Guide for employers available
Employers are encouraged to educate and train managers on the new laws, how to deal with applications for leave, and communicate all relevant changes to staff.
It is important as an employer to review and update systems, policies and procedures to ensure compliance and, furthermore, implement record-keeping arrangements to track leave taken, especially as you cannot record it on an employee’s payslip.
To reiterate, employers must also remember their duty of confidentiality when it comes to handling employee evidence.
The Fair Work Ombudsman has published the ‘Employer Guide to Family and Domestic Violence,’ which further advises on creating appropriate workplace responses, especially when suspecting or becoming aware of domestic violence. It also details what an employer’s legal obligations are in this respect. For instance, in addition to taking unpaid family and domestic violence leave, employers may also organise flexible working arrangements where possible.
Employers must be reminded that one in five Australian workers experiencing family and domestic violence report the violence continuing into the workplace. Given employers have an obligation under workplace health-and-safety laws to provide a safe workplace for their employees, it is essential that employers understand these changes in detail.
Demitra Nikas is a Paralegal at Danny King Legal in Sydney.
