Paid family and domestic violence leave now apply in South Australia

On 1 September 2023, local government employees in South Australia can access family and domestic violence leave. This article, prepared by Norman Waterhouse in partnership with the Local Government Association of South Australia, expands on the main features of the legislation, and explores the changes Councils and other local government entities are required to adapt, pursuant to the Fair Work (Family and Domestic Violence Leave) Amendment Act 2023 (SA).

What is the new entitlement?

All employees, including casual employees, are entitled to 15 days of paid family and domestic violence leave in a 12 month period, noting that this leave does not accrue year-to-year.

Employment contracts that do not provide for an entitlement to family and domestic violence leave will automatically be taken to provide for 15 days as standard.

Who can apply?

Full-time, part-time and casual employees may apply for paid family and domestic violence leave for any of the following purposes arising from or in relation to family and domestic violence:

• to attend medical appointments;
• to seek and receive legal advice;
• relocate residences or make other safety arrangements; or
• for any other purpose relating to the employee dealing with the impact of family and domestic violence.

How much notice must be provided?

Employees must, as soon as practicable in the circumstances, give notice to their employer that they are taking family and domestic violence leave. Such notice must include the employee’s intention to take the leave, the purpose for which the employee intends to take the leave, and the time the employee expects to be absent.

What evidence do employees have to provide?

Councils may ask an employee to provide evidence that would satisfy a reasonable person that the leave is for one of the purposes listed above. However, Councils must not request, and the employee is not required to provide, information relating to the details, nature, or extent of the family and domestic violence.

How should employees be paid?

Employees taking family and domestic violence leave are entitled to be paid at their full rate of pay for that period, including any overtime, allowances or applicable loadings.

Casual employees should be paid their full rate of pay in accordance with their rostered hours, had those hours been worked.

Council’s confidentiality obligations

As far as reasonably practicable, Councils must take steps to ensure information obtained in relation to an employee’s experience of family and domestic violence is treated confidentially. This includes ensuring that pay slips provided to employees do not contain any information indicating that they have taken family or domestic violence leave, or how much was paid in respect of the family and domestic violence leave taken.

Councils are not prevented from disclosing information if:

• consent is granted by the individual to whom the information relates to;
• required by law; or
• necessary to protect the life, health or safety of the employee or another person.

What if Councils fail to comply with the family and domestic violence provisions?

Serious contraventions in respect of confidentiality requirements may attract a maximum penalty of $10,000.

What does this mean for Councils?

Councils are required to adhere to the new legislation and provide these benefits to relevant employees by:

• updating their workplace policies to ensure that the entitlement to family and domestic violence leave is communicated to employees;
• reviewing and updating payroll systems to ensure compliance with confidentiality obligations;
• establishing systems for maintaining records to track leave taken; and
• providing training to managers about the particulars of the new legislation, the process of handling requests for the leave, and treating all circumstances surrounding the leave in a confidential manner.

The Local Government Association of South Australia and the Employment and Safety team at Norman Waterhouse can help Councils and other local government entities understand and comply with the changes.

Please contact Samantha Killington on Samantha.Killington@lga.sa.gov.au, Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Lincoln Smith on + 61 8 8210 1203 or lsmith@normans.com.au, or Li-shern Sim on +61 407 017 681 or lsim@normans.com.au if you would like more information.