Question: Paid family and domestic violence Leave (FDVL) is being introduced now, what are the main points to be aware of?
This question was recently answered by our workplace advice line.
Answer: Paid FDVL is being added to Australia’s National Employment Standards this year (2023) in two stages:
- 1 February 2023 for all employees working in businesses with at least 15 regular employees
- 1 August 2023 for all employees working in small businesses (i.e. less than 15 regular employees).
On the relevant date above all, employees (including casuals) will be credited with a balance of 10 days of paid FDVL to replace the previous entitlement of five days of unpaid FDVL.
Thereafter, each employee will automatically have their 10 days balance restored on the anniversary of their original date of commencing employment. Paid FDVL does not accumulate above the maximum 10 days balance.
Definition of family and domestic violence
Family and domestic violence is 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.
A close relative of the employee is 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.
Immediate family means:
- a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of the employee; or the spouse or de facto partner of the employee.
Payment for FDVL
FDVL is paid as if the employee had actually worked their rostered hours that day. This means their full rate of pay plus any bonuses, loadings, monetary allowances, or penalties including rostered overtime. Paid FDVL can be taken in part days if required.
FDVL balances and leave taken should NOT appear on an employee’s payslip. Instead, the payslip should appear as if the employee worked as rostered. This is for the employee’s safety, so that any use of FDVL is not noticed by others. Employers should in fact treat all information pertaining to FDVL in the strictest confidence.
Employers have a grace period until 4 June 2023 in which they can record any FDVL taken, as another type of leave on employee payslips (but never as FDVL). However, after that date, if an employee requests that their FDVL NOT be shown as another form of leave on their payslips, then employers should oblige.
Employers must still keep accurate internal records of FDVL leave taken and all leave balances.
Paid FDVL cannot be taken simultaneously with other forms of paid leave but an employee can choose which form of leave to use on a given day should they need FDVL on a day already approved for other leave. For example swap from annual leave to paid FDVL.
Reasons to take FDVL
An employee can use their paid FDVL to deal with the effects of family or domestic violence when it is not practical to do so outside of their working hours.
Typical activities on such days would include:
- arranging their own safety or that of a close relative
- arranging alternative accommodation
- accessing police, medical, legal or financial services
- court hearings
Notice and evidence
Employees wishing to access paid FDVL must notify their employer as soon as possible. However, employers should be aware there may be circumstances where notice can only be provided after the leave has started.
Employers can request evidence that would satisfy a reasonable person that their employee needed to take their paid FDVL for genuine reasons (like those listed above). That evidence could include:
- A statutory declaration
- Documents issued by law enforcement, courts, a family violence support service
The bottom line: Ten days of paid family and domestic violence leave is a significant new entitlement for all National System Employees in Australia. Its most notable characteristics are that it is an annual ‘up front’ entitlement (i.e. does not accrue with time worked), it is paid in full as if they had worked during that leave time (including rostered overtime), and applies to all employees (including casual employees).
Got a workplace question?
Have a tricky issue at work? Call our advice line on 1800 505 529.
Help for those suffering family and domestic violence is available at 1800respect.org.au
Disclaimer: While all due care has been taken in the preparation of this information, and it is believed to be accurate, no warranty of accuracy or reliability is given and no liability is accepted for errors or omissions or loss or damage suffered as a result of a person acting in reliance thereon. This information is not legal advice. If a legal opinion is sought please contact your legal advisor.