Paid Family and Domestic Violence Leave inserted into the Fair Work Act

The new Federal Labor Government has delivered on its election promise and has introduced a bill to Parliament, which if passed, will see paid family and domestic violence (FDV) leave incorporated into the Fair Work Act. The proposed Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 provides 10 days of paid  FDV leave to full-time, part-time and casual employees from 1 February 2023, or from 1 August 2023 for small businesses (defined as a business with less than 15 employees).

Workplace Relations Minister Tony Burke has stated that workplaces “have a key role to play as a source of critical support for people experiencing family and domestic violence”. He stated that the introduction of FDV leave will make leaving home, reporting FDV and going to court, “just that bit easier”.

Examples of actions by the employee which would be covered under FDV include but are not limited to:

  • 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.

Currently, employees have the entitlement to 5 days of unpaid FDV leave available to them under the National Employment Standards (NES). Many employees may also have paid FDV leave available under Enterprise Agreements, as the entitlement became a popular entitlement under enterprise bargaining over the last few years.

The key changes that the bill proposes includes the change for the entitlement under the NES to be increased from 5 days to 10, and for all days to be paid to ensure employees are not disadvantaged when trying to leave FDV situations.

Whilst leave under the NES is generally paid out at the employee’s base rate of pay, the bill outlines that FDV leave will be paid at the employee’s full rate of pay for the day of work, worked out as if the employee had not taken the period of leave. To put this simply, employees would be entitled to the entire rate of pay based on the rostered or accepted hours of work which would have been performed including full hours of work, loadings and/or penalties which may also have been available.

This leave is also different compared to other forms of leave as it is the first paid leave which applies to casuals from the Fair Work Act. For casuals it will be paid at the employee’s full rate of pay, as if the employee had worked their rostered hours. An employee has been rostered to work hours if they have accepted an offer by the employer to work those hours (e.g. agreeing to a roster pattern posted by their manager, or having a pre-posted roster with a shift allocated by their manager).

Similar to the current unpaid entitlement to unpaid FDV leave, and unlike annual leave and personal carer’s leave, the proposed paid FDV leave doesn’t accrue progressively, and the full 10 days leave will be provided upfront. Therefore, existing employees will have access to the full 10 days from 1 February 2023 (1 August 2023, for small businesses) and for new employees, the full 10 days will be available from their first day of employment.

In regards to employees covered by an enterprise agreement which already includes paid FDV, the more favourable entitlement would prevail to the exclusion of the other.

The notice and evidence requirements for accessing leave for FDV remain unchanged under the proposed bill. If an employee takes FDV, they have to let the employer know as soon as possible. This can happen after the leave has started.

Evidence requirements can include documents issued by the police service, documents issued by a court, family violence support service documents, or a statutory declaration.

The proposed bill pauses the Fair Work Commission’s previously announced process of incorporating paid FDV leave into Awards. ER Strategies will continue to provide updates to ensure employers are prepared for the introduction of paid FDV as the bill moves through Parliament into legislation.

Further Assistance

If you have any questions regarding these changes, or if you are unsure of what to do, we encourage you to call ER Strategies on 1300 55 66 37.

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