Circular 2023/2: Update to Family and Domestic Violence leave reporting requirements under the Fair Work Regulations 2009

Purpose

1. This purpose of this circular is to inform Australian Government agencies of further changes to the Fair Work Regulations 2009 (the Regulations), effective 4 June 2023, regarding:
   • how paid family and domestic violence leave is recorded on payslips, and
   • how Commonwealth agencies can continue to meet legislative obligations.
2. This Circular is to be read in conjunction with Circular 2022/12.

Further requirements for payslip records

3. On 4 February 2023, the Regulations were amended to restrict pay slips from reporting an absence for family and domestic violence reasons as any form of leave (including miscellaneous or discretionary leave). Only payment for ordinary hours of work and other payments for performing work (such as overtime and allowances) are to be shown (regulations 3.47-8).
4. This action was taken as a measure to further protect the safety and privacy of employees. Payslips are to only show information of payments ordinarily received by the employee, had they not taken paid family and domestic violence leave.
5. There is one exception to this in subregulation 3.48(3), where an employee can request their employer to report on a payslip a period of paid family and domestic violence leave as a different type of leave. In this case, agencies must ensure existing balances of the different leave type are not affected.
6. A payslip is not considered to be false or misleading for complying with the Regulations (refer Fair Work Act 2009 (FW Act), subsection 536(3A)).
7. Implementation of the new requirements are subject to a grace period of four months from 4 February 2023 (regulation 7.06), and must be in place by
   4 June 2023.

Providing support, including leave, to employees

8. As a model employer, it is the Government’s expectation that Commonwealth agencies provide paid leave, and other supports, to employees experiencing family and domestic violence in excess of the minimum in the National Employment Standard (NES) of 10 days. Generally, this is facilitated through miscellaneous or discretionary leave.
9. Agency records of miscellaneous or discretionary leave provided for family and domestic violence purposes are to be maintained and accessible in the form required by the FW Act, including subsection 106(c).
10. Further information on these requirements can be found in the Fair Work Ombudsman Fact Sheet on Record-keeping and pay slips.
11. It is essential that any method of employee record keeping, for leave or other support related to family and domestic violence, does not put employees at risk of harm or violation of privacy. The record of the employee’s absence (in any form) must be held in strict confidentiality and available only on a need to know basis.
12. Existing agency practices to record and administer paid miscellaneous leave for family and domestic violence purposes, either through the agency’s payroll system or through individual case management, can be retained.  Adjustments to systems and practices to meet the new legislative requirements will need to be made as necessary, according to the current approach in each agency.
13. The APSC is currently reviewing its family and domestic violence policy framework template. The revised template is expected to be available soon.

Action agencies need to take

14. Agencies must ensure that the recording of leave provided to employees for family and domestic violence leave purposes meet the new legislative requirements from 4 June 2023. This includes:
    • Leave types used to record paid absences – whether through a payroll system or individual case management – are not identifiable as for family and domestic violence reasons
    • The correct rate of pay is applied when this type of leave is provided
    • Payslips do not report any leave taken for family and domestic violence leave reasons.
       
15. Agencies must make arrangements that allow casual staff (where applicable) to access paid absences for family and domestic violence purposes.
16. Support for employees experiencing family and domestic violence will be discussed as part of the APS bargaining negotiations. The need for separate/supplementary advice to agencies on providing support will be considered by the APSC and issued at an appropriate time, subject to any outcome of negotiations and the release of the Statement of Common Conditions.

Further information

17. The Fair Work Ombudsman’s website has more information on how the amendments operate – https://www.fairwork.gov.au/leave/family-and-domestic-violence-leave.
18. If you have questions about this circular, please contact workplacerelations@apsc.gov.au.