All employees under the Fair Work system will soon be able to access 10 days of paid family and domestic violence leave per 12-month period. This new entitlement will replace the existing entitlement to 5 days of unpaid family and domestic violence leave under the National Employment Standards.
Here are some key points:
- Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period. It won’t be pro-rated for part-time or casual employees.
- The full 10-day leave entitlement will be available upfront but is not cumulative from year to year like other leave entitlements under the NES.
The leave will be available from:
- 1 February 2023, for employees of non-small business employers (employers with 15 or more employees on 1 February 2023).
- 1 August 2023, for employees of small business employers (employers with less than 15 employees on 1 February 2023).
- Employees will continue to be entitled to 5 days of unpaid family and domestic violence leave until they can access the new paid entitlement.
How does this work with current employees and new employees?
Employees who start on or after the effective date that the paid leave entitlement becomes available can access the full 10 days from their first day. The leave will renew on their work anniversary.
Employees who are already employed when the paid leave entitlement starts in their workplace can access the full 10 days on the relevant start date. The leave then renews on the anniversary of when they started working for that employer (not when paid leave entitlement became available).
For all employees, the leave renews each and every year on their work anniversary. It doesn’t accumulate from year to year if it isn’t used.
Examples from Fair Work: Employee starts work before the paid leave entitlement comes into effect
| Marg started work with her employer on 19 December 2020. On 1 February 2023, her employer has more than 15 employees so Marg is entitled to the new paid leave from 1 February 2023. Marg will be able to access the full 10 days from that date. Her leave balance will renew on her work anniversary (19 December). |
Example: Employee starts work after the paid leave entitlement comes into effect
| Gina starts work with a small business employer on 18 September 2023. From this date, Gina can access 10 days of paid family and domestic violence leave. Gina’s entitlement will renew on 18 September each year. |
Payment for leave:
Full-time and part-time employees can take paid family and domestic violence leave at their full pay rate for the hours they would have worked if they weren’t on leave. Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave. An employee’s full pay rate is their base rate plus any:
- incentive-based payments and bonuses
- loadings
- monetary allowances
- overtime or penalty rates
- any other separately identifiable amounts.
For example:
| Cathy is a casual shift worker and is rostered to work a 9-hour night shift on a Tuesday. Cathy normally receives a first aid allowance. She notifies her employer that she is unable to attend work for the rostered shift and that she needs to access family and domestic violence leave. Cathy must be paid for the 9 hours she would have worked including the night shift penalty and the first aid allowance. |
Notice and evidence requirements:
If an employee takes paid family and domestic violence leave, they have to let their employer know as soon as possible. This could be after the leave has started. An employer can ask their employee for evidence to show that the employee has been impacted by family and domestic violence and must make arrangements, attend somewhere in person or access services in relation to their circumstances, and it’s not practical to do that outside their hours of work. An employer can only use this information to satisfy themselves that the employee is entitled to family and domestic violence leave, unless:
- the employee consents
- the employer is required to deal with the information by law, or
- it’s necessary to protect the life, health or safety of the employee or another person.
The employer can’t use the information for other purposes, including taking adverse action against the employee. All other rules about notice and evidence are the same as the current rules for taking unpaid family and domestic violence leave. Reference: New paid family and domestic violence leave – Fair Work