Employer-Paid Domestic Violence Leave is Now Available to Employees

Prime Minister Anthony Albanese has taken to the airwaves to boast of his government’s passing of legislation which entitles those who are affected by domestic violence to up to 10 days of paid leave per year, replacing previous laws which enabled employees to take five days of unpaid leave.

Domestic violence

Family and domestic violence is a serious social issue across the nation, and those who are victims can face a myriad of difficulties – not the least of which is having to move premises, re-organise a range of personal and financial matters, and of course see psychological help.

It is an issue that our state, territory and federal governments have been attempting to address for decades through a range of initiatives such as increased funding to support services and reforms to the law including broadening the scope of, and increasing penalties for, domestic violence offences. 

The measures have been designed to assist those who are trapped in controlling and/or abusive relationships to escape their abusers, to punish offenders and to deter those who might – but for the penalties – consider engaging in such conduct.

The prevalence of domestic violence across Australian communities is indeed an issue which governments bear a significant degree of responsibility to address, in order to keep victims safe, deter prospective offenders, bring perpetrators to account and ultimately enhance society as a whole.

The new law

For this reason, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill was introduced into the federal House of Representatives on 22 July 2002, passed by both houses of federal parliament on 27 October 2022, given Royal Assent on 9 November 2022 and came into force on 1 February 2023 – the same day as the International Labour Organization Convention 190—Violence and Harassment Convention 2019 came into effect in Australia.

The Bill, which is now an Act of Parliament, amends sections of the Fair Work Act 2009 (Cth) which relate to family and domestic violence leave entitlements.

Before the law came into operation, Australian employees were entitled to up to five days of unpaid family and domestic violence leave during each 12 months of employment. 

Now, employees are entitled to up to 10 days of paid family and domestic violence leave during each 12 months of employment.

Who is entitled to the leave?

The leave is available to any permanent or casual employee of a business other than a small business – which is a business with less than 15 employees – who experiences violent, threatening or otherwise abusive conduct at the hands of a current or former intimate partner, or a close relative.

The new law wills apply to small businesses from 1 August 2023.

Who is a close relative?

A close relative is a child, parent, grandparent, grandchild, sibling of a current or former spouse or de factor partner, or any other person considered to be related under Aboriginal or Torres Strait Islander kinship rules.

What is the basis upon which the leave can be accessed?

The leave can be accessed for any purpose required to deal with the impact of family and domestic violence, such as relocating, accessing counselling and/or support services, making relevant financial and/or personal arrangements, accessing legal advice and representations, and so on.

How much is the leave payment?

The leave payment is equivalent to the full payment the employee would have received if they had been at work, including all loadings, allowances, overtime pay and penalty rates.

Can employee’s face consequences for taking leave?

No. It is unlawful for an employer to take any adverse action towards an employee for taking the leave.

When must an employee notify an employer of the leave?

An employee may notify their employer of their intention to take the leave prior to the date on which it is commenced, or as soon as practicable thereafter.

What are the requirements regarding proof?

An employer may ask for evidence of the entitlement to take the leave, although the legislation does not specify what types of material ordinarily suffice.

It may be speculated that a certificate from a medical practitioner, or letter from a counsellor or support worker, would be enough.

Does the leave accrue over the course of the year?

No. An employee is permitted to take the entirety of the year’s leave from the first day of employment.

Can the leave be carried over into subsequent years?

No. The leave applies for 12 months after which it lapses. A new entitlement commences on each anniversary of employment.

Who pays for the leave?

The leave is entirely paid by the employer.

The government does not pay for the leave or reimburse the employer for any of the costs of the leave, or provide any contribution towards, make any allowance for or credit any deduction in favour of the employer for the payment of leave.

How is the leave recorded?

It is unlawful for an employer to record the nature of the leave on pay slips.

It can only be recorded in a way that is only accessible to the employer and his or her agents.

Do employers have any other obligations?

It is also unlawful for an employer to use information provided by the employee as evidence for taking leave in any way except to satisfy the employer of the legitimacy of the leave request, unless:

• the employee consents to the disclosure, 
• the employer is required by law to make the disclosure, or 
• the disclosure is necessary to protect the life, health or safety of the employee or another person.

What happens if an employer breaches those obligations?

An employer who contravenes the above requirements is subject to a civil penalty under Part 4-1 of the Fair Work Act of up to 60 penalty units.

A Commonwealth penalty unit is currently $222, which means the maximum fine is $13,320 in addition to any other penalties the employer may be ordered to pay over the breach.

In a nutshell

So, the rules can be summarised as follows:

• All permanent and casual employees of businesses with 15 employees or more are entitled to domestic and family violence leave (this will extend to all businesses from 1 August 2023),
• The leave is 10 days for each 12 months of work,
• The entire amount of the year’s leave can be taken from the first day of employment,
• The leave payment is equivalent to the full payment the employee would have received if they had been at work, including all loadings, allowances, overtime pay and penalty rates,
• Employees may notify employers of leave being taken before taking it, or as soon as practicable thereafter,
• Employers cannot take adverse action against employees for taking the leave,
• Employees may be required to show evidence they are entitled to the leave,
• The leave does not roll-over to subsequent years,
• Employers must pay for the entirety of the leave (there is no government contribution or allowance),
• Employers face penalties for recording the nature of the leave on pay slips,
• Employers also face penalties for disclosing that the leave was taken, except in limited circumstances.

While such rules are important to help victims of family and domestic to move forward with their lives, the fact the entirety of the costs are borne by business owners rather than paid by way of, or at least supported by, government funding could have a severe impact on many businesses that are already in dire financial straits as a result of COVID-19 lockdowns and operating restrictions, rising interest rates and a stagnant economy.

Get your priorities right

Perhaps rather than getting entangled in multi-billion dollar agreements to purchase discontinued submarines or rorting taxpayers in the order of hundreds of millions of dollars by giving meritless grants to gain political advantage, governments should focus on allocating resources to important social issues such as domestic violence, housing, social security, health and general wealth inequality. 

And while our ‘grass roots’ PM has the audacity to boast of his concerns over domestic violence, his proactivism and his generosity, perhaps he should consider spending hard-earned taxpayer funds where it is needed instead of dumping the financial burden of his ‘benevolence’ on already-struggling business owners.