Home | Member Updates | Revised FDV Leave Pay Slip Requirements

Please read the following addendum together with the circular below.

1. No reference to FDV leave is to be made on pay slips whether it is leave taken, payments made for FDV leave or FDV leave balances remaining; AND
2. Subject to a grace period in place till 3 June 2023, newly inserted regulation 3.48 goes further to state that FDV leave must not otherwise be reported on a pay slip as another form of leave but must be reported as either:
   • performance of ordinary hours of work, or
   • another kind of payment made in relation to the performance of the employee’s work, including (but not limited to) an allowance, bonus or a payment of overtime.

The only exception being where the employee requests that the employer report the leave as an amount paid for taking another form of leave (not FDV leave).

NES paid family and domestic violence (FDV) leave provisions commenced on 1 February 2023

The  Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022  became effective on 1 February 2023 for all (but small <15 employees) employers. The new Fair Work Act 2009 National Employment Standard (NES) of 10 days FDV (Family and Domestic Violence) leave and associated provisions will provide welcome support to those employees dealing with the impact of FDV.

Many members will note that they already have paid FDV and other generous leave in place in policy and/or Enterprise Agreements and which may exceed this minimum paid FDV leave entitlement. However, members should also note the new provisions include a number of other important privacy/confidentiality and payment settings. These are likely to require careful consideration and review of existing arrangements to ensure compliance and to avoid significant penalties and reputation risk for contravention.

Overview of new paid FDV leave provisions:

• Employees including casuals (those who but for the need to take FDV Leave were rostered/ engaged to work) may now access up to 10 days of paid Family Domestic Violence Leave (FDV) per annum (non-cumulative).
• The existing definition of FDV has been expanded to include violent, threatening or other abusive behaviour by a member of an employee’s household, or a current or former intimate partner of an employee.
• Employees may access paid FDV leave if they are experiencing FDV and needs to access support and/or services to deal with the impact of that FDV and it is impractical to do so outside of work hours. This may include making arrangements for their safety or the safety of a close relative, court appearances, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals. · Payment is the at the employee’s full rate of pay for the hours worked, had the employee not taken FDV leave and includes any incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates etc.
• As previously, employers must take all reasonable steps to ensure any notice or evidence an employee provides with respect to FDV leave is treated confidentially.

Prohibition from using personal information

Employers must not use personal information provided in respect of FDV leave:

• without employee consent other than to assess FDV leave entitlements (except if required by Australian law or to protect the life, health or safety of the employee or another person.)

OR

• to take adverse action against an employee

Pay slip requirements

Please see addendum above – strict pay slip requirements apply.

Contraventions

Employers and individual employees may face significant penalties for contraventions of these provisions:

• For individuals – maximum 60 penalty units[i] or $16,500 per contravention
• For organisations – maximum of 300 penalty units or $82,500 per contravention
• A ‘reverse onus’ applies to the employers/individual.
• in addition to these penalties, as with all adverse action claims employers (and individuals) may be liable for significant damages and/or compensation payments.

[i]One penalty unit is $275 as of 1 Jan 2023)

Implications for members

As mentioned above, many enterprise agreements covering university staff, together with policies, already provide for paid FDV leave. In some cases, the entitlement at your university to paid leave for ongoing and fixed-term staff will be more generous than the new NES provisions.

Nonetheless, members should: review their EA provisions, policies and procedures, to ensure they are compliant with the new requirements; especially with respect to casuals, information recorded on pay slips and strict record-keeping privacy settings; and provide training to key staff.

Commercial in confidence