Domestic violence is experienced by millions of Australians every year. Studies show that it is common for a person living with family and domestic violence to experience higher levels of financial stress, homelessness, isolation and vulnerability when compared to those living in an environment without family and domestic violence.
From 1 February 2023, the Fair Work Amendment (Paid Family and Domestic and Violence Leave) Act 2022 (Act) introduces 10 days paid family and domestic leave per annum for full-time, part-time and casual employees of clubs with 15 or more employees. Clubs with less than 15 employees will be given until 1 August 2023 to adopt the changes implemented by the Act and the minimum entitlements now available to employees.
The new entitlement to paid family and domestic leave will be available to employees immediately, and to new employees on commencement of their employment, and the leave does not have to accumulate over time. The amendments implemented by the Act will replace the existing entitlement to 5 days of unpaid family and domestic leave under the National Employment Standards.
Employees exercising their workplace right to take paid family and domestic leave will be able to take the leave at their full rate of pay for the hours they would have worked if they were not on leave. Part-time or casual employees taking paid family and domestic leave will be entitled to be paid their full rate of pay for the hours they were rostered to work, not pro-rated.
An employee will also be entitled to use paid family and domestic leave during a period of paid personal/carer’s leave or annual leave. Where this occurs, the employee will need to give the club the required notice and evidence and will then be considered to take paid family and domestic violence leave and not any other form of leave.
The leave balance will renew every year on each employee’s work anniversary and is not accumulated from year to year if it is not used.
Clubs will need to keep an accurate record of leave balances and any leave taken by employees. However, employers must not include information about paid family and domestic violence leave on their employees’ payslips, including any statements that they have taken leave as paid family and domestic violence leave or information about their paid family and domestic violence leave balances.
It is therefore essential that clubs are prepared and understand their legal responsibilities under the Act and in particular, employee entitlements to avail themselves of the leave if they are experiencing family and domestic violence.
Where a club becomes aware of family and domestic violence issues being experienced by an employee, the club and employee can agree to implement further safety and security measures including changing the employee’s hours of work or location, blocking emails and changing phone numbers in an effort to protect the employee. However, it will be essential to the employee’s safety that all disclosures by the employee and subsequent measures taken by the club remain confidential.
In order to facilitate the new requirements of the Act, we recommend clubs adopt and implement workplace policies and procedures that clearly articulate the leave entitlements and aim to support employees experiencing family and domestic violence. Of course, as this is new law, it is open to change as employees and employers experience the nuances of its application. It will, therefore, be necessary to commission regular reviews of any policies and procedures adopted. It is also appropriate to review, and if necessary implement safety plans and procedures with clear lines of communication in an effort to enable an employee to raise their concerns in a structured manner. Clubs can further support all employees by providing ongoing education and awareness and prominently displaying workplace safety information in appropriate areas.
Finally, it is important that any policy also addresses circumstances where a club becomes aware that its employee is a perpetrator of family and domestic violence. Where a club suspects that an employee may be a perpetrator, it will be important for the club to seek independent legal advice. Policies should include provisions setting out the consequences that are available to the club if an employee is a perpetrator.
We are able to draft a family and domestic leave policy for your club to address the main aspects of the Act as the practical steps to be taken in relying on it. Please do not hesitate to contact us if you would like further information.
Further Information and Contact Details
Should you wish to discuss any aspect of this Newsletter or want any legal advice about these matters, please contact any member of the Clubs team on 8251 7777 or by email:
| Tony Johnston: | t.johnston@pigott.com.au |
| Bruce Gotterson: | b.gotterson@pigott.com.au |
| Ray Travers: | r.travers@pigott.com.au |
| John Ralston: | j.ralston@pigott.com.au |
| Leonie Kyriacou | l.kyriacou@pigott.com.au |
| Michael McCluskey: | m.mccluskey@pigott.com.au |
| Eleni Bastoulis | e.bastoulis@pigott.com.au |
| Julian Hawkins: | j.hawkins@pigott.com.au |
This publication is produced by Pigott Stinson. It is intended to provide general information only. The contents of this publication do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this publication. Liability limited by a scheme approved under Professional Standards Legislation.