Family and Domestic Violence Leave

Australian workers - full time; part-time, and casual - now have access to 10 days of paid family and domestic family violence leave.

These changes come into effect on 1 February 2023 for businesses with over 15 employees, and on 1 August 2023 for those businesses with 15 or less employees.

This leave forms part of the National Employment Standards (NES) and as such no worker can have an agreement which excludes this leave entitlement.

Employers cannot refuse a legitimate application for family and domestic violence leave.

An employee needs to give notice of the leave as soon as practicable — this may be after the leave has started. They must also tell the employer how long they expect this leave to last.

This leave may be taken as 10 consecutive days or spread out across a year. It does not accrue from one year to the next; it resets at the start of the anniversary of an employee’s employment.

Evidence Requirements

An employer can request evidence that satisfies that the leave is justified and should that not be provided by the employee, the leave may be refused.

If an employee believes the refusal was unjust or improper, they can bring a claim against the employer in the Fair Work Commission within 21 days of the refusal.

Employers must grant and pay an employee the requested amount of paid family and domestic violence leave when the request is justified, as is the case with sick leave.

For full and part-time workers, this would be the amount of time they would have worked in this period. Casual workers only need to be paid for days that they were rostered to work.

Employers don't have recourse to recover the additional paid leave from any government fund.

Family and domestic violence leave is different to sick leave and employers should keep records of all leave an employee has taken.

Confidentiality

Employers have to take reasonably practicable steps to keep any information about an employee’s situation confidential. This includes information about the employee giving notice that they’re taking the leave and any evidence they provide. Employers are not prevented from disclosing information if:

  • it's required by law, or

  • it's necessary to protect the life, health or safety of the employee or another person.

Employers need to be aware that any information about an employee's experience of family and domestic violence is sensitive. If information is mishandled, it could have adverse consequences for their employee. Employers should work with their employee to discuss and agree on how this information will be handled.

The Fair Work Act specifically provides that employers must not include any information on a payslip which identifies that the purpose of the leave is due to family or domestic violence. This requirement is designed to protect the safety of the individual.

What is family and domestic violence?

Family and domestic violence means violent, threatening or other abusive behaviour by an employee’s family member that:

  • seeks to coerce or control the employee; or

  • causes them harm or fear.


A family member includes, an employee's:

  • spouse or former spouse;

  • de facto partner or former de facto partner;

  • child;

  • parent;

  • grandparent;

  • grandchild;

  • sibling;

  • an employee's current or former spouse or de facto partner's child, parent, grandparent, grandchild or sibling; or

  • a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Examples of reasons an employee may have to take this leave include:

  • arranging for the safety of the employee or a close relative including relocation;

  • attending court hearings;

  • accessing police services;

  • attending counselling; and

  • attending appointments with medical, financial or legal professionals.

Counselling and Support

Confidential information, counselling and support for people impacted by domestic and family violence is available at the 1800 RESPECT website , the national sexual assault, domestic, and family violence counselling service.

Continuous Service

Unpaid Family and Domestic Violence leave doesn't break an employee's period of continuous service.

You can find out more at the Fairwork Ombudsman Website.