Paid domestic violence has arrived and the National Employment Standards will be changed from 5 days unpaid leave to paid 10 days family and domestic violence leave in each 12-month period.
For Employers larger than 15 employees the new laws start on 1 February 2023 and for those with fewer than 15 employees, the obligation will begin on 1 August 2023.
What are the main points Employers and Human Resources need to know?
- Understand the meaning of family and domestic violence
Family and domestic violence means behaviour that is:
Behaviour that seeks to coerce or control the employee or/and causes them fear by:
- An employee’s close relative;
- Current partner;
- Former intimate partner;
- Member of their household.
A close relative is:
- an employee’s:
- spouse or former spouse
- de facto partner or former de facto partner
- a child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner, or
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
- 10 Days paid domestic leave entitlement
The domestic violence leave does not accumulate over time. Once the employee commences employment with the employer they are automatically entitled to 10 days paid leave within 12 months.
It will not accrue from year to year but the entitlement works differently to other types of leave as the leave entitlement is provided upfront.
- Notice and Evidence Requirements
The notice requirements are very limited in that the employee just needs to give as much notice as possible.
For Employers, they will have a right to ask the employee for evidence to show that they are dealing with family and domestic violence and it is not practical to do so outside of work hours.
However, in practical terms, Employers need to tread very carefully in this respect. Sensitivities will need to be taken into account as well as ensuring there is no undue exacerbation of the problem.
Further, the information provided cannot be used for other purposes except in the circumstances where:
- the employee consents
- the employer is required to deal with the information by law, or
- it is necessary to protect the life, health or safety of the employee or another person.
Using the information for other purposes will be considered adverse action and will enliven the General Protections provisions.
- Casual Employees can access Domestic Violence leave
Casual employees will be able to access domestic violence leave. As such, the “leave” paid will be for whatever hours they were rostered on for that casual period engagement.
- Payment of domestic violence leave
Domestic violence leave payments are to be made to full-time and part-time employees on the basis of the wage they would normally be entitled to. This will include:
- basic wages
- incentive-based payments and bonuses
- monetary allowances
- overtime or penalty rates
- any other separately identifiable amounts
Casual employees will be paid for their rostered hours for that leave period.
- What could the domestic violence leave be used for?
Domestic violence leave could be used in a myriad of examples including but not limited to the following:
- making arrangements for their safety, or the safety of a close relative (including relocation)
- attending court hearings
- accessing police services
- attending counselling
- attending appointments with medical, financial or legal professionals.
- What can Employers and Human Resources do right now?
The domestic violence leave benefits will require a shift in thinking when it comes to domestic violence being disclosed to an employer. Obviously leave will be made available but also there needs to be an understanding of some of the practical steps to take.
- Management Training is a prime way to educate leaders and managers on other facets of changes in IR Laws such as The IR Changes are coming – 5 Practical Issues to consider for Employers and Human Resources as well as the changes around domestic violence leave
- Updates on processes and policies may be required to ensure compliance with the new provisions
Give NB Employment Law a call we offer an obligation free consultation to work through some of these steps worth taking and would be happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
Jonathan Mamaril, Director
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.