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Improved access to family and domestic violence leave

Improved access to family and domestic violence leave

Prime Minister Anthony Albanese speaking to workers at an event to mark the implementation of 10 days paid family violence leave. AAP Image/ Mick Tsikas

Following legislative change by the Albanese Government in October last year, from 1 February 2023 almost all members will have improved access to paid family and domestic violence leave. The only exception is if you work for a small employer with 15 or less employees, for these members the entitlement below takes effect from 1 August 2023.

Because it is a National Employment Standard or NES entitlement, it doesn’t matter what (if anything) your contract or EBA says, the NES will override it to the extent that the NES is more beneficial.

The NES will provide up to 10 paid days per annum of family and domestic violence leave to all employees, including casual employees. This leave is available up front for all employees from 1 February 2023 (or the latter for date for small employers) and renews in full at the start of each year of your employment (but does not accumulate from year-to-year).

The amount of paid leave is the same, whether you are full-time, part-time or casual.

Rate of pay

The Fair Work Act provides that employees are entitled to receive their full rate of pay for paid family violence leave, which will include allowances and/or penalty rates which would have been received, had leave not been taken.

Many current enterprise agreements provide paid leave, but do not provide specific guidance on the rate of pay employees should be paid while on family violence leave. So, the NES will apply the full pay rate for 10 of those days, even if the EBA doesn’t.

Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.

Definition of family and domestic violence

The scope of what constitutes family and domestic violence varies between the Fair Work Act and many current enterprise agreements (which rely on the definition in the Family Violence Protection Act 2008 (Vic) (‘Victorian FV Act’)).

The Victorian FV Act definition of family and domestic violence expressly includes matters such as coercive behaviour, economic and psychological abuse as well as behaviour that causes a child to be exposed to the effects of acts of family and domestic violence.

In contrast, the Fair Work Act includes violent, threatening or otherwise abusive behaviour seeking to coerce or control, and cause harm or fear but does not expressly include the range of abusive behaviours as found in the Victorian FV Act or include a reference to children.

Current enterprise agreements may have a broader definition of family and domestic violence and, therefore, may be more favourable.

Definition of family member/immediate family

The NES entitlement to family and domestic violence leave arises where employee experiences abuse from a member of the employee’s “immediate family” and will now extend to the actions of ‘a member of the employee’s household, or a current or former intimate partner of an employee’.

The definition of ‘family member’ in most EBAs, and “immediate family” in the NES are slightly different, so if in doubt ensure you seek advice. ANMF would expect employers to err on the side of providing the benefit.

Taking family and domestic violence leave

Employees (including part-time and casual employees) can take this paid leave if they need to do something to deal with the impact of family and domestic violence.

This could include, for example, the employee:

  • 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.

Interaction with other paid leave

An employee can use paid family and domestic violence leave during a period of paid personal or annual leave. If this happens, the employee is no longer on the other form of paid leave and is taking paid family and domestic violence leave instead. The employee needs to give their employer the required notice and evidence.

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 needs to do something to deal with family and domestic violence 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 to take adverse action against the employee.

Contacting the ANMF

Contacting ANMF may understandably not be the first thing that comes to mind for a member experiencing family violence.

It is far more likely that a victim of family violence will confide in a close work colleague. For this reason we encourage members to encourage colleagues who are ANMF members, and need support, to make contact with ANMF as soon as possible.

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