The Fair Work Act defines family and domestic violence as violent, threatening or other abusive behaviour by:
who seeks to coerce or control the person and causes the person harm or to be fearful.
A “close relative” can include:
Paid FDV Leave is available to an employee if they are experiencing family and domestic violence and need to do something to deal with the impact of it, which is impractical to do outside their work hours.
The Fair Work Act does not specify the kinds of situations that may require an employee to take FDV Leave. However, it does provide some examples include scenarios such as:
This list is not exhaustive and employers should exercise their own judgement when deciding whether to grant this leave.
Read more about family and domestic violence leave here.
Immediately, from 1 August 2023.
Existing employees of small business employers can access paid FDV leave from 1 August 2023 (and thereafter FDV leave will renew on the employee’s work anniversary).
For new employees commencing after 1 August 2023, paid FDV leave is available when they commence their employment (and thereafter will renew on the employee’s work anniversary). That means employees can access the full 10 days of FDV Leave from their first day, and do not need to accrue FDV Leave.
You are not required to pay independent contractors FDV Leave as they are not employees.
Employers have a duty to provide employees with a safe workplace (as far as is reasonably practicable). This has not changed because of the introduction of paid FDV leave. It’s also important to emphasise that the ‘workplace’ can also include where an employee is working from.
Family and Domestic Violence (FDV) Leave is an entitlement of 10 days paid leave in Australia, as part of the National Employment Standards (NES). From 1 August 2023, this applies to small business employers (employers with less than 15 employees).
Please note that some small business employers are not covered if they are not a National System Employer. For further information about who a national system employer is, please see the FWO website.
FDV Leave is designed to support and assist employees who need time away from work to deal with family and domestic violence and its impacts.
Read more about family and domestic violence leave here.
Paid family and domestic violence leave is paid to an employee by their employer, just like annual and persona/sick leave.
If you’re paying family and domestic violence (FDV) leave to your full-time and part-time employees, it must be paid at their full rate of pay for the hours they would have worked had they not taken the FDV leave.
For casual employees, it should be paid at their full rate of pay for the hours they were rostered to work had they not taken the FDV leave.
It’s important to note that “full rate of pay” includes any incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or other separately identifiable amounts that the employee would have received had they worked rather than taking FDV Leave.
Employers should try to take a flexible approach to how an employee takes their 10 days of family and domestic violence (FDV) leave.
FDV leave can be taken as:
There may be times where an employee is required to use FDV Leave during periods of other types of leave, such as during a period of personal leave, annual leave or on a public holiday.
In this scenario, the employee is no longer on the other form of paid leave, and the employer should not make deductions from other leave accruals for the period of FDV Leave taken. Where requested by the employer, the employee needs to give their employer the required notice and evidence.
Read more about what employees need to know.
Yes, employees must give employers notice of the taking of FDV leave as soon as possible, noting that this may be at a later time, after leave has started.
Employees must also advise the employer of the period, or expected period, of the FDV leave.
Both casual and part-time workers are entitled to 10 days of paid family and domestic violence leave for the hours in the period in which they were rostered to work.
Casual employees can also take a period of paid family and domestic violence leave that does not include the hours they are rostered to work. During this time, employers are not required to pay the employee for the leave taken on the day when they weren’t rostered to work.
What this means for the employee is that they cannot be adversely treated in circumstances where they refuse an extra shift, or are unable to make themselves available for an unrostered shift because they’re taking family and domestic violence leave.
As an employer, you must take steps to ensure that any information or notice provided by an employee of their intention to take FDV leave is treated confidentially, as far as it is reasonably practicable to do so.
You must not use any information regarding FDV Leave for a purpose other than to confirm that your employee meets the eligibility requirements for the leave, unless your employee consents to have the information used for a different purpose.
It’s important to note that you are not prevented from sharing family and domestic violence information where it is required by an Australian law or is necessary to protect the life, health or safety of your employee or another person.
Pay slips must not mention FDV Leave, including any leave taken and leave balances. The leave taken must be recorded as ordinary hours of work, or another kind of payment for performing work, such as an allowance, bonus or overtime payment. This is a requirement per the Fair Work Regulations.
The employee may also request that it is recorded on the payslip as another type of leave, such as annual leave.
An employer must maintain a separate, confidential record of an employee’s leave balances including their entitlements to FDV Leave.
As a business owner, you can determine whether or not you need your employee to provide evidence that they need to take FDV leave.
Such evidence may include official documentation provided by a range of legal and/or health/social services. However, it is critical that you exercise your discretion in this respect.
Types of evidence can include:
You can either sight the evidence or keep a copy. If you choose to keep a copy, you must store it confidentially and securely.
Only employees who are experiencing family and domestic violence are entitled to take FDV leave. If you’re dealing with a situation where two employees are both claiming family and domestic violence in your workplace, you may need to seek legal advice.
Importantly, it is not your job to decide whether one or both are a victim-survivor.
There may also be circumstances where an individual is simultaneously a victim-survivor in one relationship and a perpetrator in another.
In most states in Australia, there is no requirement on an employer to report family and domestic violence, with the exception of the Northern Territory (which imposes obligations on adults to report knowledge of family and domestic violence). The laws surrounding such reporting obligations differ from state to state.
Please note, however, in certain circumstances, there are legal obligations to report acts or threats of family violence to external bodies where it is necessary to protect the life, health or safety of the employee or another person(such as the safety of a child).
As noted above, employers can disclose family and domestic violence information (i.e. to the police) if it is necessary to protect the life, health or safety of the employee or another person. If, for example, the perpetrator attended the workplace and was threatening harm, it would be appropriate to contact police to protect the health and safety of those at the workplace.
You might be running your business from your home which can make it hard to keep your work life and your personal life separate.
An unsafe home environment can make it hard for you to do the work you need to do to run your business, such as:
It is important that you plan for your future safety to protect both your physical and mental health and your business and income.
The NES are the minimum terms and conditions for employees in the national workplace relations system and are contained in the Fair Work Act 2009. The NES are, in essence, a safety net of entitlements for all employees.
Employees who are covered by the NES may also be covered by other employment instruments, such as an award, enterprise agreement or employment contract. Conditions under these employment instruments must always be at least the same as, if not more beneficial than, the NES – this ensures that employers cannot impose any conditions that are less than the minimum entitlements provided by the NES.
Yes, all employees are entitled to 10 days paid FDV Leave per year under the NES. Paid FDV Leave is available to all employees, including full-time, part-time and casual employees.
Read more about understanding the changes to family and domestic violence leave entitlements.