Domestic violence in Australia is recognised as a major public health, welfare, and social issue. It is estimated to cost employers $175 million a year in direct and indirect costs due to increased risks of workplace violence, increased illness, absenteeism and employee turnover, and legal liabilities.
Women are at much greater risk of family, domestic, and sexual violence, but men also experience it. According to the Australian Bureau of Statistics, 2.2 million Australians have been subjected to physical and/or sexual violence by a current or previous partner (1 in 6 women and 1 in 16 men), and 3.6 million Australians have experienced emotional abuse from a partner (almost 1 in 4 women and 1 in 6 men).
The Albanese Labor government has made family, domestic, and sexual violence a major focus, calling it a "stain on the national soul". On 27 October, changes to employment legislation passed into law that will give all workers, including casuals, access to 10 days of paid family and domestic violence leave each year (employees are currently entitled to 5 days unpaid leave).
This blog post takes a broad look at family and domestic violence leave, current entitlements and how they work, and what to expect when the new provisions come into effect in 2023. We also discuss ways to support employees who need to take family and domestic violence leave.
Current family and domestic violence leave entitlements
Under the National Employment Standards, all employees are entitled to 5 days of unpaid family and domestic violence (FDV) leave each year. FDV leave:
- Applies to all employees (including casuals, part-timers, award-wage workers, and award-free managers, executives, professionals etc.)
- Is available from the first day of employment and renews on the anniversary of employment.
- Doesn’t accumulate from year to year if it isn’t used.
- Can be taken as a single continuous period or separate periods of 1 or more days (you can take less than one day or more than 5 days at a time if the employer and employee agree).
- Is separate from annual leave, sick and carer’s leave, and bereavement leave.
Awards, agreements, employment contracts, or workplace policies can provide more than these minimum entitlements, but cannot provide less.
Taking FDV leave
Employees can take FDV leave if they need to deal with the impact of family and domestic violence, e.g. making arrangements for their (or a close relative’s) safety, accessing police or support services, attending court hearings, and it's impractical to do it outside ordinary work hours.
The employee must let their employer know as soon as possible that they are taking FDV leave (this can happen after the leave has started) and how long they expect the leave to last.
Employers can ask for the employee to provide evidence that would convince a reasonable person that they took the leave to deal with the impact of family and domestic violence. Some examples of evidence are documents issued by the police, court, or a family violence support service, or a statutory declaration.
The employer can ask for evidence for as little as 1 day or less off work and If the employee doesn't provide it, they may not get family and domestic violence leave.
Employees experiencing family and domestic violence may also be entitled to paid sick leave or choose to take other types of leave, such as annual leave.
Definition of family and domestic violence
Family and domestic violence is defined as violent, threatening or other abusive behaviour by an employee’s close relative or household member that seeks to coerce or control them or causes them harm or be fearful.
Common examples include assault or sexual assault, psychological abuse, stalking, intentionally damaging or destroying property, unreasonably withholding financial support or autonomy, or preventing making or keeping connections with the person’s family, friends or culture.
A close relative of an employee includes:
- a spouse or de facto (including former spouse or partners) child, parent, grandparent, grandchild, or sibling of a spouse or de facto partner.
- a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
A member of an employee’s household includes any person living in the same residence as the person (whether they are related to them or not), e.g. extended family members or a housemate.
For more information about types of violence and abuse, visit the 1800Respect website.
Changes to FDV leave in 2023
In late July 2022, the Albanese government introduced changes to the National Employment Standards into parliament, giving workers 10 days of paid family and domestic violence leave each year.
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 passed both parliamentary houses on 27 October, and will come into effect on 1 February 2023 (or 1 August 2023 for businesses with less than 15 employees).
All employees, including part-timers and casuals, will be entitled to:
- 10 full days of paid leave (instead of the current 5 days unpaid leave) from the day they commence employment.
- Receive 10 days of paid leave each year on their work anniversary.
- Be paid at their full rate of pay, as if they had worked and not taken the leave.
As per current standards, FDV leave will not accumulate from year to year if the leave isn’t used. The leave can be taken as one continuous period or separate periods of 1 or more day(s), or, by agreement, the person can take less than 1 day or more than 10 days.
Working examples
Payment for casuals working rostered hours
Bob's Burger Bar usually arranges shifts for the week with its casual workforce on Monday morning.
This week, it offers a casual employee shifts on Wednesday, Thursday, and Friday, and the employee says they are available to work on Wednesday and Thursday, but is unsure about Friday.
The employer and employee agree to the person working on Wednesday and Thursday and will confirm their availability for Friday later in the week.
On the Tuesday, the employee experiences an instance of family and domestic violence. As a result, they are unable to work for the remainder of the week.
The employee is entitled to take paid FDV leave and at their full rate of pay for the hours agreed on Wednesday and Thursday. Even though they were not rostered for work on Friday, they could still choose to take a day of paid FDV leave on Friday.
How FDV leave will accrue
A full-time employee commenced employment on 5 March 2022.
On 8 February 2024, the person experiences family and domestic violence and as a result, they take 7 days of FDV leave in order to find new accommodation, access police services, and attend court hearings.
On 5 March 2024, the employee's FDV leave entitlement resets to 10 days (it is their anniversary date). The 3 unused leave days are not carried over.
The employee takes a further 8 days of FDV Leave over the next 8 months to access counselling and financial and legal services to deal with the family and domestic violence.
The full 10-day leave entitlement resets again on 5 March 2025. The 2 unused days from the previous year are not carried over.
A criminal trial is heard in April 2025 and the employee takes 4 days FDV leave to attend court as required.
Over 15 months, the employee takes 21 FDV leave days and is entitled to 6 further days' leave during the year.
Find out more about the new FDV leave provisions at fairwork.gov.au.
Supporting workers experiencing family and domestic violence
It is best for the business and your employees if the business has a process to deal with family and domestic violence. The workplace is often the only place a victim feels safe and can provide a place for them to get support, gain confidence and financial independence, and break the cycle of abuse.
Employee work performance can be seriously affected along with increased absenteeism, higher turnover, and unwanted loss of people. FDV can also affect the ability of the worker due to injuries or trauma, relocation to a safe place, or needing to attend medical and legal appointments. There is also the potential damage to the business's reputation.
Best practice is to have a workplace policy that sets out the entitlement to paid time off work (up to 10 days) and meets the employer’s duty of care obligations to identify and manage workplace health and safety risks associated with FDV.
Other features to consider including in the policy are:
- Ways to offer support and alert an employee to professional help options, including where the employee can access support.
- Assurance of a worker’s right to confidentiality and support when they disclose domestic violence.
- Considering flexible work request options - short and long term.
- Ensuring that ongoing training and awareness-building is available to all team members.
Confidentiality
Information about an employee's experience of family and domestic violence is highly sensitive. When you receive a request for FDV leave, you must take reasonably practicable steps to keep any information about the employee’s situation confidential. This includes information about the employee giving notice that they’re taking FDV leave and any proof they provide.
You could also make arrangements with your payroll provider to determine how you wish for family violence leave to be recorded in payroll and on payslips. This can provide an additional level of discretion for victims, if they are seeking confidential support during work hours.
Employers are not prevented from disclosing information if it's required by law or could protect the life, health or safety of the employee or another person.
In all cases, you should work with the employee to discuss and agree on how their information will be handled.
Where employees can get help
Businesses can direct employees affected by FDV to several organisations that can help, including:
- 1800 Respect – 1800 737 732.
- National Domestic Violence Hotline -1800 787 3224.
