Ten days paid Family and Domestic Violence Leave becomes law in Australia

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 passed both houses of Federal parliament on 27 October 2022.

The new legislation amends the NES to provide full time, part time and casual employees ten days paid family and domestic violence leave (FDVL) in a 12 month period.

When do the new arrangements commence?

For businesses with 15 employees or more – 1 February 2023.

For businesses with fewer than 15 employees – 1 August 2023.

What are the transitional arrangements?

Employees (of employers with 15 or more employees) employed as of 1 February 2023 will be immediately entitled to ten days of paid family and domestic violence leave.

This is regardless of whether they have used any of their existing entitlement to five days of unpaid family and domestic violence leave.  

Employees (of employers with 15 employees or more) who commence their employment after 1 February 2023 will have immediate access to FDVL from the day they commence their employment

There is also a mechanism to resolve uncertainty arising between entitlements to paid family and domestic violence leave in enterprise agreements and the new NES paid FDVL entitlement.  An employee covered by the enterprise agreement (or another party to the enterprise agreement) can apply to have FWC vary the enterprise agreement for consistency with the NES entitlement.

Does FDVL accrue progressively / accumulate from year to year?

No.

The FDVL entitlement resets on each anniversary of an employee’s commencement date and does not accrue progressively like annual or personal leave entitlements.

Is FDVL paid out on termination like annual leave?

No.  Like personal / carer’s leave, FDVL is not paid out on termination.

What is the definition of family and domestic violence?

Family and domestic violence leave is violent, threatening, or other abusive behaviour by a close relative, a member of an employee’s household, or a current or former intimate partner of an employee that:

1. seeks to coerce or control the employee; and

2. causes the employee harm or to be fearful.

This is more broad than the previous definition, as the words “a member of an employee’s household, or a current or former intimate partner” have been included.  The definition previously only referred to a close relative.

What rate of pay will FDVL be taken at?

FDVL is to be taken at an employee’s full rate of pay.  Section 18 of the Fair Work Act defines this as including:

1. incentives and bonuses;

2. loadings;

3. monetary allowances;

4. overtime or penalty rates; and

5. any other separately identifiable amounts.

The hours of work are assumed to be as if the employee had not taken FDVL.  For casual employees, this means assuming that they would have worked their rostered hours.

What are the evidentiary requirements?

Technically, the legislation still requires that employees provide evidence which would satisfy a reasonable person that:

1. they are experiencing family and domestic violence;

2. they need to do something to deal with the impact of family and domestic violence (for example arranging for the safety of themselves or a close relative, attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals); and

3. it is impractical to do (b) outside work hours.

However, family and domestic violence is obviously a sensitive issue that employers should approach delicately.  At this stage we consider it is very unlikely that employers will face the same evidentiary issues with FDVL as are common with personal leave.

Employers may decide to require employees to provide a:

1. statutory declaration;

2. medical certificate; or

3. court documents / correspondence.

Whether an employer actually decides to require this from an individual employee is really a judgment call, and we can advise on specific situations that arise. 

Do employers have an obligation to ‘report’ family and domestic violence?

A question that is often asked is if an employee takes FDVL, does the employer have an obligation to report this to the police or other relevant authorities? 

There is no clear obligation to do so, and employee’s privacy rights obviously need to be respected.  We recommend employers have a policy which says information provided by an employee will only be divulged where it is necessary to maintain the safety of that person or others in the workplace.  We also recommend employers obtain consent prior to making any disclosure.

What about taking FDVL during periods of personal / carer’s leave?

The legislation specifically says that if an employee takes paid personal / carer’s leave, but this period includes a period of FDVL, then the employee is taken to not be on paid personal / carer’s leave for that period.  This is a logical approach because it prevents the employee from depleting their accrued personal / carer’s leave unnecessarily.

Edge Legal

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