All employees, including casuals, will be eligible for 10 days paid Family and Domestic Violence Leave per year from 1 February 2023 as the most recent changes to the Fair Work Act and National Employment Standards come into effect. There are some exemptions for some businesses delaying the commencement for 6 months, but this completely new entitlement is unique in its requirements and it is vital for all fuel wholesale and retail operators to understand in detail now.
As ACAPMAg has followed https://acapmag.com.au/2022/07/family-and-domestic-violence-leave-changes/and https://acapmag.com.au/2022/05/what-has-changed-in-family-and-domestic-violence-leave/there has been a significant change to the Fair Work Act and the National Employment Standards that has resulted in the creation of a new entitlement for all staff: PAID Family and Domestic Violence Leave (FDVL).
Under the changes all employees are entitled to 10 days PAID FDVL.
“This new entitlement is available to all staff. This means all permanent full time, permanent part time and casual staff” explains ACAPMAs Elisha Radwanowski.
Paid FDVL will apply in Small Businesses from 1 August 2023, but in all other businesses from 1 February 2023.
“While Small Businesses, those employing less than 15 staff in total, will have a 6 month deferral until 1 August 2023, for all other businesses the entitlement becomes a reality on 1 February 2023 and it needs to be understood now” continue Elisha.
Paid FDVL is available in full, up front to all staff.
“The in full up-front nature of the leave is such that an employee does not have to wait for the leave to accrue in order to use it, the full 10 days are available on day one of employment” explains ACAPMAs Elisha Radwanowski.
Paid FDVL is available to all staff who have been rostered, including casuals.
“A casual can access the entitlement as long as they had been ‘rostered’ to work, this means that they were offered a particular shift, they accepted that shift, and then they could not work that shift due to Family and Domestic Violence or related matters” continues Elisha.
Paid FDVL is counted and paid as time worked.
“Unlike other leave which is often calculated on the Base Rate, paid FDVL is calculated and paid as if it had been worked. So if the employee was rostered for a period of work that usually would attract shift loading or penalties, then those shift loadings or penalties must be paid when the employee takes paid FDVL” details Elisha.
Paid FDVL is available for more than recovery.
“Employees can access the entitlement for a range of reasons, including: attending court hearings, seeking counselling; attending appointments with doctors, lawyers, bankers or police as well as relocation of themselves or a close relative” explains Elisha.
Paid FDVL is reset annually.
“Each year on the anniversary of employment, the entitlement rolls back up to 10 days. So if the employee had, during the course of the previous 12 months taken 6 days paid FDVL, then on the anniversary day the entitlement will be back up to 10 days” added Elisha.
Paid FDVL comes with responsibilities for the business, including the need to keep records of the entitlement, but these records must be kept private and MUST NOT be shown on the payslip.
“There is a requirement for the available balance of paid FDVL not to be shown on the payslip. Similarly there is a requirement for there to be no reference to paid FDVL on the payslip when it is taken. These, somewhat odd, requirements are part of victim protection actions to ensure that the domestic violence victims payslips are not showing any offender who may be seeing them, that the employee is communicating to others about the domestic violence and may be readying to remove themselves from the environment” continued Elisha.
“This can not be stressed enough. The business must keep FDVL so private that payslips must no show it accruing or being used. This is for the safety of the victim” emphasised Elisha.
It is also worth noting that the accrual of, or taking of FDVL can not be shown on any employee time and attendance portal, nor should there be any email or text trail of the employee applying for or being granted FDVL.
“This is a massive change from usual operations, that businesses really need to understand. The principle is one of safety. There are many instances where domestic violence offenders will have full access to, and control of, a victims email, work logins and physical mail. In such instances any electronic or posted record of the victim applying for or receiving paid FDVL could place the victim in danger. So the business must limit the record keeping to in person and in writing at the workplace only. This is important to protect the victim” explains Elisha.
“It may seem backward in a world where we are digitising everything, but the reality is that when it comes to FDVL the business should be having direct conversations with the employee and making written notes that the employee signs off on while at work and are stored in the employees physical file at the workplace. This provides the employee with the protection of confidentiality, but it is also an important step to provide the business with evidence that it has indeed engaged with the employee on the matter and provided access to the entitlement, which may be an issue should there be a dispute about same in either an unfair dismissal or adverse action context” notes Elisha.
In summary every employee is entitled to 10 days of paid FDVL in a 12 month period,
• The entitlement is available from day 1 of employment,
• The entitlement does not accumulate from year to year but resets,
• The entitlement is available to casual and permanent staff,
• The leave is available if all of the following conditions are met; the employee is experiencing family and domestic violence AND the employee needs to do something to deal with that. So if the employee is suffering from domestic violence and has to attend court (or move house, or consult with a therapist/doctor etc) then the employee is entitled to take unpaid domestic violence leave,
• Confidentiality must be maintained by the business – including payslips, employee systems, text and email.
Applying for paid FDVL involves a process of notice and evidence that the Fair Work Act also regulates;
• The employee must provide notice of the leave that is being taken, that it is going to be family and domestic violence leave that is taken, the duration of the leave and must provide any evidence that the business requests to verify that the leave being taken is appropriate,
• Evidence that a business can request and must accept is subject to the reasonable person test – so if the evidence requested or provided would satisfy a reasonable person that the employee was entitled to take the leave then it should be accepted.
“ACAPMA is now incorporating these changes into the ACAPMA Leave Guide and will re-release this Guide shortly, in the mean time if Members have any questions they are encourage to reach out to discuss with the Employment Team” concluded Elisha.
Here to Help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members.
Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Training