New legislation allowing employees access to 10 days of Paid Family and Domestic Violence Leave (FSVL) applies for large business from today, 1 February 2023. What does this mean for employers?
Firstly, what’s changed?
- Full-time, part-time and casual employees will be able to access 10 days of paid family and domestic violence leave in a 12-month period (FDVL)
- Previously, only full-time and part-time employees could access FDVL and only up to 5 days of unpaid leave in a 12-month period
- The full 10-day leave entitlement will be available upfront and can be taken in a single block or in any other manner
- There is no length of service requirement or qualifying period
- The leave does not accumulate year-to-year
- There are now tighter rules about information that must not be included on an employee’s pay slip relating to paid FDVL in order to preserve confidentiality
What is FDV?
Violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household, that:
- seeks to coerce or control the employee;
- or causes them harm or fear
Who is included?
- Spouse or former spouse, de facto partner or former de facto partner
- Child, Parent, Grandparent, Grandchild or Sibling
- A child, parent, grandparent, grandchild or sibling of an employee’s current or former spouse or de facto partner,
- A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules
- Intimate partners (even if not living together), or
When can it be accessed?
Full-time, part-time and casual employees may apply for FDVL if:
- they experience family and domestic violence
- they need to do something to deal with the impact of the family and domestic violence
- it is impractical to deal with the family and domestic violence outside their ordinary hours of work
What evidence is required?
An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence
If the employee doesn’t provide the requested evidence, they may not get FDVL
The evidence has to convince a reasonable person that the employee took the leave to deal with the impact of family and domestic violence
Types of evidence
- documents issued by the police service
- documents issued by a court (AVO/ADVO CAN’s)
- family violence support service documents, or
- a statutory declaration
What about Confidentiality?
New regulations prohibit employees from including information concerning FDVL on employees’ pay slips (Regulations)
This includes information about the employee taking FDVL, including leave records as well as any evidence provided by the employee
Payroll systems must be set up to ensure non-disclosure in leave records and on payslips
Pay slips must not mention FDVL, including any leave taken and leave balances
What are the obligations of an employer?
- FDVL is now an NES entitlement
- FDVL has strict record-keeping requirements
- A contravention of these requirements by an employer can lead to civil penalties
- $16,500 for individual; $82,500 for corporation
- FDVL poses general protections risks in that someone may not be treated adversely due to accessing FDVL.
What should employers do now?
We recommend that all businesses take the following actions immediately:
- Update your employment contracts
- Update your Family and Domestic Violence Leave Policy
- Communicate the changes to all employees
- Update your induction processes to ensure all new employees understand the policy and how to seek support
- Ensure your payroll and finance systems are compliant with confidentiality requirements
We are here to help you with any of these changes. Reach out if we can offer you support.
As we head towards the holiday season, it’s fair to say that 2022 was yet another big year for Australia’s workplaces. We look back at seven HR issues that have helped shape the previous 12 months.
1. Labour shortages
Perhaps the most important factor that shaped Australia’s workforce over the past year has been our labour market. With the unemployment rate sitting below 3.5% and with immigration slowing thanks to COVID-19 restrictions of the past two years, many industries and employers have faced a full-blown labour crisis. In fact, a lot of employers have struggled to get new workers while others have failed to keep their existing ones without offering significant pay increases.
It’s at times like these that both recruitment and retention strategies take on a whole new importance. So, if you’re not doing what you can to optimise your workplace culture and keep employees happy and productive, now is the time to start.
2. A new government
In May, the Albanese-led Labor government took office, bringing with them a different approach to industrial relations This included a renewed emphasis on job security and gender equality.
In early September, the government also hosted a Jobs Summit in which it committed to multi-employer bargaining, as well as changes to the ‘better off overall’ test the Fair Work Commission uses when creating Awards.
To help alleviate labour shortages (see 1 above), the government also announced it planned to lift the number of skilled workers it would accept from overseas.
3. Elevation of psychological risks
Mental health has been a major issue in Australia’s workplaces for some time. However, this year, the NSW government made it mandatory for employers to assess the workplace for psychological risks (and protect their employees from them). This elevates psychological harm to the same level as physical harm under NSW law, and means employers have new obligations in the field.
So if you haven’t already assessed the psychological risks in your workplace and taken steps to rectify them, do so as soon as possible.
4. Clarity on contractors
Towards the end of last year, the High Court handed down its Workpac decision, which means that this year – finally – employees have had a higher degree of certainty over their employee obligations.
The distinction between casual and permanent employees is now more obvious, especially when combined with the former government’s legislation around transitioning from casual to permanent. That meant employers could act with a bit more confidence when it came to staffing issues this year.
5. Diversity comes of age
Diversity has been a major issue in our workplaces for some time. However, 2022 was the year that it finally became a workplace priority for many of Australia’s employers. And why wouldn’t it have? Diverse companies are shown to “lure better talent and improve their decision making, customer orientation and employee satisfaction” – all major considerations in a job market like the current one.
6. The workplace changes
While COVID-19 is still with us, 2022 was a year of less disruption than 2020 or 2021. We didn’t have the lockdowns or border closures or anything else that impacted our businesses in quite the same way as we became used to in the two preceding years.
And yet, this didn’t mean we went back to how things were pre-pandemic. Instead, we still kept many of the workplace practices that had been developed over the past two years. A lot of workplaces have adopted more flexibility, with employees using a hybrid model of working both from the office and from home. Some have even abandoned the physical office altogether – or at least now only ask employees to come in once a fortnight or once a month.
This has presented new challenges for managers and business owners, but it’s also introduced new efficiencies – especially when it comes to communication. In many cases, it’s also made output and productivity the main gauges of employee performance.
7. Outsourcing becomes even bigger
With labour shortages and flexible working now very much part of our daily lives, we’ve noticed outsourcing is also on the rise too. To some extent, we believe that’s because employers are now used to having high-quality work performed offsite. But we also think it’s part of a push to keep costs down in light of rising wages and high inflation.
Either way, outsourcing functions – including HR – was a major trend we noticed this year and one we believe is likely to continue in 2023.
If you’d like to know more about outsourcing your HR function, get in touch.
Employers often use restraints of trade to try to stop employees from taking their confidential information to a competitor and gaining an unfair advantage over them. But just how enforceable are they?
A recent New South Wales Court of Appeal (NSWCA) found that whether a restraint of trade is enforceable depends on whether you’re trying to protect a legitimate interest, as well as factors such as their duration and an employee’s seniority.
The background to the case
The case started with a familiar scenario – a senior sales manager left his employer to work for a competitor. However, his employment contract contained three clauses: a confidentiality clause, an ‘exclusive employment clause’ (this said he must devote his time and attention to the employer during business hours and promote its best interests), and a restraint of trade.
The restraint of trade clause was one of the typical ‘cascading’ ones that employers sometimes use that allow for ‘12 months’, ‘9 months’, ‘6 months’, etc, in the hope that a court will enforce the most reasonable duration.
When the employee left and worked for a competitor, the employer alleged he broke all three of these clauses in his contract.
He then failed to comply with the notice of termination clause of the contract, which provided for three months that he would not work in direct competition. Instead, he started working for the competitor within four weeks of leaving. He also helped the competitor poach a more junior employee who was subject to a similar restraint of trade clause.
The former employer brought proceedings in the Supreme Court of NSW (the NSWSC) alleging the employee – and the employee he poached – had breached their employment contracts. It received interlocutory orders (that is, temporary orders), which prevented the employees from working for the competitor until the court decided the case.
The court eventually handed down a decision in the employer’s favour. It found:
- The employee breached his employment contract when he worked for the competitor within his three-month notice period.
- A nine-month restraint was reasonable and, therefore, enforceable in both contracts.
- The employee breached the ‘exclusive employment clause’ when he helped the competitor poach another employee.
The employee appealed the NSWSC’s decision in the NSW Court of Appeal.
The appeal: Are restraints of trade enforceable?
The Court of Appeal noted that restraints were only enforceable insofar as they protected an employer’s reasonable interests for a reasonable amount of time.
In this case, the employer had a legitimate interest in protecting its confidential information from a competitor, including its marketing plans and potential weaknesses in its product. As the employee was senior and privy to this information, it was, therefore, reasonable to restrain him from a competitor for nine months.
However, it also noted that the employee he helped poach was more junior and did not have any awareness of the company’s confidential information. It wasn’t reasonable to restrain him from working for a competitor because he could not damage its legitimate interest.
The Court of Appeal also found that the employee breached his notice of termination provision. He had also breached his contractual and fiduciary duties to his former employer when he helped poach the employee.
The Court of Appeal also found that because the competitor had encouraged the employee to breach his fiduciary duty, it, too, was liable.
What the case means for you as an employer
There are times you can rely on restraints of trade to protect your confidential information, but they need to be proportionate, and they can’t be used as a ‘catch all’ to try to limit who employees can work for. You’re also far more likely to find they’re enforceable against senior employees.
It’s always a good idea to have restraints drafted properly by your legal adviser. It’s also often a good idea to use ‘cascading’ clauses – based both on duration and geography – so that a court will enforce appropriate terms rather than ‘striking out’ an unreasonable restraint.
Also. if you’re hiring an employee from a competitor and they have a restraint, proceed with caution. If possible, have your legal adviser check their restraint over before you sign them up.
If you’d like to know more about restraints of trade, get in touch.
Alternatively, you can read the full decision here.
The Full Federal Court recently handed down a decision which will impact the employment of casuals across Australia. Read on to find out what this means for your business. (more…)