Paid family and domestic violence leave available soon for all National System Employees

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) was recently passed by the Federal Government and will soon be available for employees who require support to structure work commitments around dealing with issues or the impact of family and domestic violence.

The effect of this new legislation is to amend the Fair Work Act 2009 (Cth) (the Act) to include 10 days of paid family and domestic violence leave (FDVL) in the National Employment Standards (NES), which previously allowed for 5 days of unpaid FDVL in each 12-month period.

Payment for FDVL

The 10 days of paid FDVL is not only available to full-time and part-time employees at their full pay rate for the hours they would have worked if they were not on leave, but also to casual employees.

With respect to casual employees, the rate of pay is calculated for the hours that the employee was rostered to work, and only if the employee has accepted an offer by the employer to work those hours.

Renewal of FDVL

The FDVL is renewed every year on an employee’s work anniversary. This means that the leave is not accrued, but rather is an up-front entitlement, and does not accumulate from year to year if not used.

Meaning of family and domestic violence

Under the new provisions, the definition of family and domestic violence has also been expended to include 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 both seeks to coerce or control the employee or causes them harm or fear.

Interaction with other paid leave

An employee can also access FDVL during a period of paid personal/carer’s or annual leave. If this happens then the employee is no longer on the other form of paid leave and is taking FDVL instead, provided that the required notice and evidence are provided.

Notice and evidence requirements

It is also important to note that any evidence received by the employer to satisfy itself that the employee is entitled to FDVL cannot be used for other purposes, including to take adverse action against the employee.

Enterprise agreements, awards, and applicable workplace policies

Employees covered by enterprise agreements or industry awards may be entitled to other paid or unpaid FDVL entitlements.

The amount of leave and pay ultimately available to an employee will depend on the applicable industrial instrument, contract or policy, noting that the NES entitlement will override other applicable FDVL entitlements which provide for less than this new minimum entitlement.

Take Home Messages

To provide ample time for the necessary adjustments to be made, this new entitlement will take effect on 1 February 2023 for employees employed other than by a small business.

Small business employers who meet the legislative definition (ie, less than 15 employees) have an additional transition period of 6 months to make payroll and other necessary adjustments.

If you require clarification on this newly introduced entitlement or would like to ensure that future enterprise agreements, employment contracts and workplace policies are consistent with NES entitlements, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.