The Newest Addition to the NES: What do employers need know about the new entitlement to paid family and domestic violence leave?

What is it?

The upcoming amendments to the Fair Work Act 2009 change the current five days of unpaid leave for family and domestic violence (FDV) to a paid entitlement of ten days’ leave. This will be an entitlement arising under the National Employment Standards (NES).

When does it come into effect?

The paid FDV leave will be available to most employees experiencing FDV from 1 February 2023. However, paid FDV leave will not be available to employees of small business employers until 1 August 2023. Small business employers are those who employ 15 or fewer employees in total across the entire group of associated entities.

Who does it apply to?

The entitlement to paid FDV leave applies to all employees, be they full-time, part-time or causal. The entitlement is available in full to part-time and casual employees, that is, it is not pro-rated.

What constitutes FDV?

Family and domestic violence is defined as violent, threatening or other abusive behaviour by a close relative of the employee, a member of the employee’s household or a current or former intimate partner of the employee, that seeks to coerce or control the employee and which causes the employee harm or to be fearful.

Are there any evidence requirements?

There are. However, the amendments do not make any changes, or introduce any additions, to the existing FDV leave evidence requirements. Accordingly, an employer can still ask their employee for evidence that shows the employee took the leave to do something to deal with FDV and it was impractical for the employee to do that thing outside of their working hours. If the employee doesn’t provide the evidence, they may not get the leave.

What responsibilities do employers have when handling an application for this leave?

Employers – particularly those who ask for evidence of FDV – have a responsibility to handle their employee’s information confidentially, and to not use it for purposes other than processing the FDV leave.

The amendments specifically prohibit employers from using FDV leave information to take adverse action against an employee requesting the leave.

Employers whose employees are covered by an existing Enterprise Agreement (EA) which provides for unpaid FDV leave must nevertheless provide the new paid FDV leave entitlement to their employees, as it will be an entitlement arising under the NES.  Employers (as well as employees and employee organisations) will be able to apply to the Fair Work Commission for a variation of their EA to make it consistent with the amendments.

What should HR be considering in light of these changes?

HR departments should be aware of the potential of employees requesting this leave from their direct manager rather than the HR department, due to the sensitive circumstances and vulnerability that motivates the leave request. It is important, then, for HR teams to be supporting managers with training in how to handle these requests with compassion and discretion.