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  • Writer's pictureJarrod Carter

New Law: Paid Domestic Violence Leave

Last year, 63 women were killed in Australia. This horrific statistic is partially caused by how difficult it is for victims to escape their abusers. A recent change in the law seeks to make it easier for victims to escape their abusers.

Before 1 February 2023, the Fair Work Act provided employees covered by the national system with 5 days of unpaid family and domestic violence leave (FDV leave). However, with the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022, this entitlement has been increased to 10 days of paid FDV leave. This is a significant change that will provide employees with the time and support they need to deal with the impacts of family and domestic violence, without having to worry about financial stress.

In addition to the increase in leave days, the Act has also extended the entitlement to casual employees and requires that employees be paid FDV leave at their full rate of pay, rather than just their base rate of pay. This includes an employee's base rate, plus any incentive-based payments, bonuses, loadings, monetary allowances, overtime or penalty rates.

The Act also expands the definition of family and domestic violence to include actions by former intimate partners and unrelated household members. Family and domestic violence means violent, threatening or other abusive behaviour by an employee's close relative, a current or former intimate partner, or a member of their household that both seeks to coerce or control the employee and causes them harm or fear. A close relative can include an employee's spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, sibling, or a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Employees who need to deal with the impacts of family and domestic violence in a way that is not practical to do outside of work hours will be able to take paid FDV leave. This includes making arrangements for their safety or the safety of a close relative, attending court hearings, accessing police services, attending counselling, and attending appointments with medical, financial or legal professionals.

Employers will be responsible for paying for this leave and must keep a record of leave balances and any leave taken by employees. However, pay slips must not mention FDV leave, including any leave taken and leave balances. Employees taking paid FDV leave must let their employer know as soon as possible, although this could be after the leave has started.

Employers may ask employees for evidence to show that they need to do something related to family and domestic violence, but this information can only be used to satisfy the employer that the employee is entitled to FDV leave. If an employee takes paid FDV leave, they must let their employer know as soon as possible. This can be after the leave has started. The information cannot be used for other purposes, including to take adverse action against the employee. Employers must keep the information disclosed confidential.

Small businesses will have an extra six months to adjust to these changes, with the leave becoming available to their employees from 1st August 2023. This extra time has been granted to help small businesses prepare for the financial burden of providing this leave. An employer is considered a small business if they have fewer than 15 employees at any given time. However, if the employer has 15 or more employees at a point in time, they are no longer classified as a small business employer. The total number of employees should include those working for associated entities of the employer. Casual employees are only counted if they are regularly and systematically engaged by the employer.

The recent changes to the Fair Work Act 2009 are a major step forward in addressing the issues of escaping family and domestic violence in Australia. By providing employees with 10 days of paid FDV leave, and extending this entitlement to casual employees, the Act offers important support to those who need it most. With these changes, employees will be able to take time off work to deal with the impacts of family and domestic violence without having to worry about financial stress.

It would be preferable to be able to wipe out domestic violence and abuse. Western Australia has not caught up to the Eastern states by outlawing coercive control. While this change in the law does not solve the problem, it is a step in the right direction. It is evidence of our society condemning this abuse. It formally recognises it as a valid and real need for paid leave to escape from toxic and dangerous situations. It is a small but necessary step forward in helping the vulnerable escape from real abuse. Most importantly, it will allow victims to remove vulnerable children from traumatic and damaging environments.

If you do decide to utilise this new leave entitlement, please make sure that your employer is not considered a small business, because the entitlement will only be available from 1 August 2023. If you have any doubts please consult a lawyer, or the relevant government agency. Also, consider obtaining advice from counsellors, friends, family and other trained professionals about how best to safely execute a plan of action. This may include obtaining restraining orders, commencing proceedings in the family court, complaints to the police, accessing women’s refuges, or otherwise going into hiding. If you genuinely fear for the lives and safety of yourself and your children, please make a very effective, and thought-out plan to remove the danger. And don’t hesitate and reach out for help. Whilst it may feel embarrassing, you will be amazed by how many wonderful people are willing to help you.

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