Employee assistance programs

Some employers have agreed to providing employee assistance programs and specific rights and entitlements for employees experiencing domestic or family violence. To find out whether a particular workplace has done so, check the employer's policies and the employee's award or enterprise agreement. The specific rights and entitlements acknowledge that family violence can have an impact on a worker's performance, productivity and safety at work.

Paid family and domestic violence leave

From 1 February 2023, most South Australian employees have a right to 10 days paid family and domestic violence leave per 12 months of service [Fair Work Act 2009 (Cth) s 106A]. This leave is available to full-time, part-time, and casual workers [see also s 106BA]. It is a right held by all National System Employees under the National Employment Standards (‘NES’), however it does not apply to State Government and Local Government employees.

There is a transitional provision which means that employees of small businesses will not be entitled to 10 days of paid domestic and family violence leave until 1 August 2023 [Schedule 1 cl 52]. Small business employees still have access to 5 days unpaid family and domestic violence leave until that time. A small business employee is an employee of a business which employed fewer than 15 employees on 1 February 2023 [s 23].

An application for paid family and domestic violence leave requires that [s 106B]:

Examples provided in the Fair Work Act 2009 (Cth) 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 [s 106B(1)].

Family and domestic violence leave does not accrue from year to year. An employee will have access to 10 days of paid leave on the commencement date (1 February 2023 or 1 August 2023 for small business employees) [Schedule 1 cl 52]. Access to the leave resets on each employment anniversary for each employee or on the start date for a new employee [s 106A, Schedule 1 cl 52].

The leave can be taken as a 10-day block, in single or multiple day periods, or as otherwise agreed with an employer.

Leave taken must not be reported on an employee's payslip as family and domestic violence leave. It should be recorded on the pay slip as ordinary hours of work or as another kind of work related payment (i.e. overtime, bonus or allowance). On the request of the employee, family and domestic violence leave can be reported on a payslip as another kind of leave such as personal leave or annual leave [Fair Work Regulations 2009 (Cth) regs 3.47 and 3.48].

See Schedule 1 clause 53 for the interrelation between the NES right to paid family and domestic violence leave and enterprise agreements entered into prior to the commencement of the NES right.

South Australian State Government employees should check their relevant enterprise agreement, as these may cover leave for domestic and family violence directly or provide special leave with pay. Enterprise agreements may be available on the South Australian Employment Tribunal website. In any case, from 1 September 2023, the Fair Work Act 1994 (SA) provides for a minimum standard of family and domestic violence leave to be read into every contract of employment under the Act, unless the provisions of the contract are already more favourable [s 70B]. Theis mimimum standard is set out in schedule 3 to the Act, but may change after a period of 2 years in accordance with the Act. An employee is entitled to 15 days family and domestic violence leave from the beginning of each year of their employment. Leave must be at the full rate of pay and the employer must maintain confidentiality and may only disclose the employee's experience with consent or for a lawful purpose.

Family and domestic violence leave initially commenced in August 2018 and was previously only available on an unpaid basis for 5 days each year of service and applied to a more limited definition of family members.

More information and advice can be obtained from the Fair Work Ombudsman or the Working Women's Centre, and their DFV Work Aware website.

In an emergency: 000

For police attendance: 131 444

Domestic Violence Crisis Line: 1800 800 098

1800 RESPECT: 1800 737 732