If you haven't already, you need to make changes to how you do things
What do you need to know?
- The change commenced 1 August 2023.
- Your employees are entitled to paid leave at their full rate of pay.
- Your employees can access up to 10 days of FDV leave in a year.
- This leave is available as soon as an employee starts working for you.
This replaced the previous entitlement of 5 days unpaid FDV leave.
As a small business, there are things that you must do to comply with the new legislation.
There are also things that are good to do to take this to the next level to make sure you are providing the people that work for you with a safe and supportive workplace.
What you need to know about FDV leave
- All employees are entitled to FDV leave, including part-time and casual employees.
- To be eligible, employees must be experiencing family and domestic violence and need to do something to deal with its impacts that is impractical to do during work time. They are entitled to:
- up to 10 days of leave which is available, in full, immediately
- be paid at their full rate of pay.
- The leave resets on each employee's annual work anniversary.
- The leave does not accrue from year to year.
- The leave can be taken all at once, as one or more days at a time, or as part-days if you agree.
Which businesses does this apply to?
Businesses with fewer than 15 employees.
This change started for larger businesses on 1 February 2023.
Small businesses were given an additional 6 months to get ready.
Which employees can take this leave?
All employees can take this leave.
They can be full-time, part-time or casual.
Casual employees must be paid their full rate for the hours they were rostered to work in the period they take leave.
What needs to be happening for someone to take this leave?
- Your employee needs to be experiencing family and domestic violence.
- This means they are experiencing violent, threatening or other abusive behaviour by someone close to them.
- This may be from a close relative, someone who lives with them, or their partner or ex-partner.
- You can find a definition of “close relative” on the Fair Work Ombudsman's family and domestic violence page.
- The behaviour may include where the person is causing them harm or making them feel afraid, as well as trying to make them do things they don’t want to do or trying to control them.
- It would not include arguments with workmates, neighbours and friends, unless they are a member of the same household.
- Your employee needs to do something to deal with the impact of family and domestic violence, such as go to the doctor, get legal advice, get themselves to safety.
- It’s impractical for your employee to do the above outside their working hours.
What can employees use the leave for?
It is important to remember that the reason for this leave is to make sure that people who are experiencing family and domestic violence can be safe.
When people are experiencing family and domestic violence it can be hard to access support outside of working hours.
This might be because the person they are afraid of is home, or the services and supports that they need to access aren’t available outside of work hours.
Employees can take leave to do things like:
- make a plan for their safety
- get financial advice
- speak to a counsellor
- see a doctor or other medical specialist
- get legal advice
- find a safe place to live
- go to court
- go to the police
- look after their children.
You can learn more about why an employee needs to be able to take leave at this time in episode six of the Small business, big impact podcast: Why your employee needs leave.
What leave process should be followed?
If your employee needs to take FDV leave, they should follow the usual process for applying for leave, where appropriate (ensuring that confidentiality is maintained). Having a policy to support your employees is important because there are a range of unique elements to requesting FDV leave. Make sure you update your leave policies to incorporate FDV leave.
Make this clear by updating your leave policies to incorporate FDV leave.
You can ask your employee:
- to provide you with notice of leave as soon as possible
- to provide you with dates of leave or, if uncertain, the period of leave (if possible)
- to let you know about the leave as soon as possible.
Remember, it can be difficult to plan for a crisis so you may not know about the leave until after it starts. Under the law, your employee’s right to take leave is protected in these circumstances.
You can read more about leave processes on our Leave and payment processes page.
Do you need to ask for evidence?
No, you don’t have to.
If you do want to ask for evidence, you can ask your employee to show that they need to take (or took) the leave to deal with family and domestic violence that’s not practical to do outside of their hours of work.
Evidence may include, but is not limited to:
- documents issued by police or the court
- family violence support service documents
- statutory declarations
- documents issued by a doctor.
If you do ask your employee for evidence, approach this sensitively and allow for the fact that they may need time to provide it.
You can ask to see evidence or ask for a copy for your records. If you are keeping a record of the evidence you must comply with the privacy and confidentiality requirements below.
Maintaining privacy and confidentiality
It is important to be very clear on what information you are and are not allowed to share with other people.
If you find out that an employee is experiencing family and domestic violence, you might feel worried about them and want to keep them safe. You might think you have to tell someone, like the police. Mostly, it is up to the person experiencing family and domestic violence to decide who they tell and what help they get.
FDV leave records and any information or evidence provided by your employee should be kept confidential.
The only times that you can share this information without their agreement is if:
- you are required to share the information by law
- you need to share the information to protect the life, health or safety of your employee or another person
- your employee consents to you sharing this information.
You can find more information about on the Respecting privacy and confidentiality page.
Recording leave on pay slips
Pay slips must not mention family and domestic violence leave, including any leave taken or remaining leave balances.
Instances of FDV leave taken must be shown on pay slips as time worked or another kind of payment for performing work.
Your employee can request that it be shown as another type of leave (e.g., annual or personal leave) but do not do this unless it is specifically requested.
You can find more information about payment process and pay slips on the Leave and payment processes page.
What other support can employees ask for?
As well as paid FDV leave, your employee can ask:
- for flexible working arrangements
- to take paid personal/carer’s leave or other leave
- to take unpaid personal/carer’s leave or other leave.
Want more information?
1800RESPECT is the national service for anyone impacted by domestic and family violence, including employers. Call 1800RESPECT on 1800 737 732 or chat online via the website. The service is available 24 hours a day 7 days a week, for information, counselling and referrals.
For further advice about your workplace rights or information about how to deal with workplace disputes, refer to the Fair Work Ombudsman and visit the Fair Work Ombudsman's Paid family and domestic leave page.