You can find some of the questions we have come across regarding this issue here. Please don’t hesitate to contact our team if you have any questions or issues.
Q: What is a Small Business Employer Headcount?
A: When looking at whether you are a small business or not for the purpose of FDV Leave you will simply apply the small business employer calculation in section 23 of the Act and count regular casuals, not all casuals.
Fair Work Act – Section 23 Meaning of small business employer
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
If you are in doubt about your employee headcount and want to avoid the risk of potentially incorrectly delaying your employees access, please contact us .
Q: Is Overtime/day a day?
A: Payment for FDVL is to be paid at the employee’s full rate of pay, worked out as if the employee had not taken the period of leave’ meaning that the payment needs to include any overtime, loadings, allowances etc (Taking paid family and domestic violence leave – Fair Work Ombudsman).
Balance and Deduction
An employee’s balance of FDVL is in days, meaning an employee who took two days of FDVL leave (one day being paid for 5 hours, the other for 10 hours for example) would have their balance reduced by 2 days, irrespective of the fact that their rostered hours fluctuate for those 2 days. If the second day would have been paid at overtime rates if worked, the employee is entitled to be paid those overtime rates when accessing paid FDVL.
The question remains on what happens when an employee takes only part of a day (I.e. rostered to work 8 hours and takes 4 hours off). The Fair Work Ombudsman is currently exploring this to provide clarity and we will share this information as soon as it is released.
Q. Can perpetrators use FDVL?
A: Employers should steer clear of trying to form any views or make any assessments on who is doing what and just assess a leave request based on the wording of the Act. This is because the Act does not distinguish between this and therefore if the employee has requested a period of paid FDVL and they meet the definition of the Act as noted below, they can access the leave.
Fair Work Act – Section 106B – Taking paid family and domestic violence leave
(1) The employee may take paid family and domestic violence leave if:
(a) the employee is experiencing family and domestic violence; and
(b) the employee needs to do something to deal with the impact of the family and domestic violence and
(c) it is impractical for the employee to do that thing outside the employee‘s ordinary hours of work.
Q. Can someone access FDVL if they are supporting someone who is experiencing FDV?
A: In order to access paid FDVL, an employee needs to be experiencing FDVL. Meaning if they are not experiencing it, but someone else is, they technically cannot access the leave unless they are also experiencing it as well.
Where the confusion comes in is the example provided in note 1(b) which states: ‘Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) include arranging for the safety of the employee or a close relative (including relocation)’.
This is meant to capture the situation where an employee is experiencing domestic violence and there is another family member who is also caught up in the situation. It is to account for situations such as when an employee lives with their partner and their mother; is experiencing domestic violence and so also need to relocate their mother as a result.
It doesn’t extend to a situation such as, for example, an employee whose sister is experiencing domestic violence and the employee wants to take leave to support them. That employee would need to use other forms of leave.
Q: When do I have to start allowing this type of leave?
A: This new legislation comes into effect on 1 February 2023 for large businesses (as defined by Fair Work – 15 head count or more permanent employees); and 1 August 2023 for small business. The entitlement to the leave commences immediately from those dates.
Q: What proof can an employer legally request to ensure the application for family and domestic violence leave is valid?
A: The legislation does not define what evidence an employer can request an employee provide in order to prove FDV leave is valid.
Employers may request evidence that would satisfy a reasonable person that the employee took the leave to deal with the impact of family and domestic violence.
Examples of actions by an employee who is experiencing family and domestic violence, include (but are not limited to) 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.
If you consider those actions, an employee should be able to provide some form of evidence that they undertook any of the above (e.g. a court notice/document, letters or documents showing that an appointment took place, medical certificates/records etc).
Employers need to be mindful of what evidence they are prepared to be responsible for as there are strict requirements imposed on employers once they hold information regarding an employee’s FDV leave – and therefore employers should exercise caution when requiring employees to provide large amounts of evidence or particularly sensitive evidence.
Q: Is there a minimum employment period required before this leave becomes available to employees e.g. after 12 months of service?
A: There is no minimum employment period required to be served in order to access the leave (including for casuals). All employees have an entitlement to the 10 days of paid leave that arises upon the commencement of employment (it does not accrue over time like personal leave). It is not cumulative and doesn’t accrue year after year.
Q: How does this leave impact on Long Service Leave provisions?
A: FDV leave will count towards an employee’s continuous service and is included for the purposes of long service leave as it is a form of paid leave. The leave is to be treated the same as personal leave in this case.
Q: If a casual employee notifies that they are accessing FDV leave, what hours should they be paid for?
A: Casual employees are entitled to be paid for the for any hours in the period for with the employee was rostered.
An employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours. However, if a casual employee takes a period of paid family and domestic violence leave that does not include hours for which the employee is rostered to work, the employer is not require to pay the employee in relation to such a period.
For example, a casual employee who asks for a week off for FDV reasons and had a confirmed roster of 2 days of 8 hours each in the coming week, would be entitled to take paid FDV Leave for those 2 days.
This highlights the importance of clear and thorough rostering processes to reduce the grey area that may exist if an employee believes they were rostered to work certain hours and the employer holds a different perspective.
Q: What happens if an employee has multiple, unrelated employers?
A: If an employee has multiple employers, they will have multiple entitlements to leave and this is the same for every other type of leave under the NES. Meaning if a single employee has two jobs, they will have an entitlement to have 10 days FDV leave with employer A and 10 days FDV leave with employer B.
Q: Can the employee claim family and domestic violence leave from multiple employers within a 12 month period? E.g. could an employee have a seasonal job for 1 month, claim family and domestic violence leave for 2 weeks and then move to a second employer and access the leave again?
A: See above re the entitlement being available from commencement. Each employer/employment arrangement remains unique in this setting. And so the employee would be entitled to the leave under each employer.
Q: What if there are doubts as to whether the leave request is genuine?
A: Firstly, we know that this question can feel awkward, or harsh to ask – we get that, but it is a question on a lot of employer’s lips and we won’t shy away from it.
Like any other type of leave, if an employer were to discover that leave was not used for a legitimate purpose, the employer should initiate steps to objectively discover the true nature of the leave. This is typically in the form of some level of investigation into the matter or a reasonable request of the employee to provide evidence. Where the leave has been non-genuine, just like any other type of misconduct, a fair and thorough disciplinary process based on evidence may be implemented.