Paid family and domestic violence leave for small business owners

Legislation providing for paid family and domestic violence leave was passed by the Commonwealth Government in 2022.  The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) (Amending Act) amended the Fair Work Act 2009 (Cth) (Fair Work Act) to provide Australian workers with access to ten (10) days of “paid family and domestic violence leave” (Domestic Violence Leave) within a period of twelve (12) months.  This article sets out an update for employers to consider in relation to the Domestic Violence Leave.

What relevant definitions should employers consider?

Terms and definitions involved in the legislative developments are provided below:

• a ‘non-small business employer’ (Non-Small Business Employer) is an employer that has more than fifteen (15) employees at any particular time; and
• a ‘small business employer’ (Small Business Employer) is one that is not a Non-Small Business Employer, or one that has fewer than fifteen (15) employees employed at a particular time.

What does this mean for employers?

• The employees of Non-Small Business Employers are entitled to the Domestic Violence Leave commencing 1 February 2023.
• The employees of Small Business Employers are entitled to Domestic Violence Leave commencing 1 August 2023.

Key information about Domestic Violence Leave?

Employers should be aware of their obligations to provide for Domestic Violence Leave, in which:

• employees are eligible for Domestic Violence Leave in a 12-month period which is available in full at the start of each 12-month period of the employee’s employment, according to section 106A(2)(a) of the Fair Work Act;
• Domestic Violence Leave is a standalone leave entitlement;
• Domestic Violence Leave is extended to all employees, including part-time and casual employees, as provided by section 19 of the Amending Act which amended section 106BA and section 106A(2)(c) of the Fair Work Act;
• Domestic Violence Leave does not accrue annually if it is not used and is not pro-rata;
• the Domestic Violence Leave is available for employees of Small Business Employers now;
• taking the Domestic Violence Leave does not break an employee’s period of continuous service;
• the hours of paid leave are accounted as the employee’s hours worked for the duration of that week, for the purposes of calculating any overtime; and
• the previous five (5) days of unpaid family and domestic violence leave under the National Employment Standards (NES) is redundant as it has been replaced by this leave entitlement of ten (10) paid days.

How does payment for Domestic Violence Leave for a part-time or full-time employee work?

The employer must pay an employee other than a casual employee, at the employee’s full rate of pay, worked out as if they had not taken the period of leave, in relation to the period if an employee takes a period of Domestic Violence Leave.

How does payment for Domestic Violence Leave for a casual employee work?

The employer must pay casual employees at the their full rate of pay, worked out as if they had worked the hours in the period for which the employee was rostered, in relation to the period if an employee takes a period of Domestic Violence Leave.  Section 106BA of the Fair Work Act further provides that:

“(a)  an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours; and

(b)  employers are unable to prevent casual employees from taking a period of paid family and domestic violence leave that does not include hours for which the employee is rostered to work.  However, the employer is not required to pay the employee in relation to such a period.“

How can employers ensure that they are not taken for a ride?

Apart from addressing employees experiencing domestic violence, what steps can employers take to ensure that all their employees do not attempt to take ten (10) days of Domestic Violence Leave each year for miscellaneous and different purposes?

Not to be paid personal/carer’s leave at certain times

Domestic Violence Leave interferes with the payment of an existing entitlement.  Employers must note that employees are taken not to be on paid personal/carer’s leave for the period of Domestic Violence Leave if an employee’s paid personal/carer’s leave period overlaps with a period of Domestic Violence Leave, in accordance with section 98 of the Fair Work Act.

Implications for all Australian employers

The ten (10) days of Domestic Violence Leave do not break an employee’s period of continuous service.  The hours of paid Domestic Violence Leave are counted as the employee’s hours worked for the duration of that week for the purpose of calculating overtime.

Information regarding the allocation of Domestic Violence Leave is located within section 106A(4) of the Fair Work Act, which states:

“The employee may take paid family and domestic violence leave as:

(a)  a single continuous 10 day period; or

(b)  separate periods of one or more days each; or

(c)  any separate periods to which the employee and the employer agree, including periods of less than one day.”

Employer’s confidentiality obligations

Reasonable steps must be taken by employers to ensure confidentiality of the employee’s situation when receiving a request for Domestic Violence Leave. This includes:

• keeping any information or evidence the employee discusses to the employer, as confidential;
• employers may disclose information solely at the discretion of the employee, if required by law, or otherwise necessary to protect the employee’s health, life or safety; and
• maintaining the leave as a separate paid leave entitlement, meaning certain information prescribed by the regulations in relation to Domestic Violence Leave is not included on the employee’s pay slip, pursuant to section 536(2)(c) of the Fair Work Act.

Links and further references

Legislation

Fair Work Act 2009 (Cth)

Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth)

Further information about Domestic Violence Leave for employees

If you are an employer and need advice on Domestic Violence Leave for employees, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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