Australia: Government Proposes New Paid Family and Domestic Leave

August 3, 2022

If, as expected, the Government's new Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (FDV Bill) is passed and becomes law, the minimum entitlement to family and domestic violence (FDV) under the Fair Work Act's National Employment Standards (NES) will increase from five days' unpaid leave to ten days' paid leave. The entitlement will extend to employees who experience violent, threatening, or other abusive behavior by a member of their household, current or former intimate partner, or close relative.

Introducing the FDV Bill late last week was the first parliamentary act of the new Minister for Employment and Workplace Relations, Tony Burke MP [also Minister for the Arts and Leader of the House]. The Minister observed that an "urgent, whole-of-community response is required [to the issue of FDV], and workplaces have a key role to play as a source of critical support" for people experiencing its impacts.

Urgent, whole-of-community response is required [to the issue of FDV], and workplaces have a key role to play as a source of critical support.”Tony Burke MP, Minister for Employment and Workplace Relations.

The Hon Burke MP noted that more than "68 per cent of people experiencing family and domestic violence are in paid work. However, many can't leave violent situations without risking joblessness, financial stress, homelessness, and poverty, leaving workers having to choose between their safety and their livelihood". The FDV Bill is designed to alleviate some of that stress.

What organizations need to know about the key proposed changes

Who is entitled to paid family and domestic violence leave?

An extended definition applies. All national system employees, including casuals, who experience violent, threatening or other abusive behavior by their close relative, a member of their household, or their current or former intimate partner that:

seeks to coerce or control the employee; and
causes the employee harm or to be fearful.

There are complex provisions which seek to extend the entitlement to non-national system employers. If you have any questions about the provisions, let us know.

What is the proposed minimum entitlement?

Ten days in a 12 month period of employment. The leave will be available in full at the start of each 12 month period (i.e. it is not progressively accrued). FDV leave does not accumulate year to year. If an employer agrees, an employee can take extra paid or unpaid leave to deal with the impact of FDV.

There are transitional provisions about how the new entitlement will extend to existing employees employed at the time the changes come into effect, along with provisions for existing casuals and employees employed for specified time, task, or season.

What is the rate of pay?

For employees other than casuals - their full rate of pay, worked out as if the employee had not taken the period of leave.
For casuals - their full rate of pay, worked out as if the employee had worked the hours in the period for which they were rostered (this includes a situation where an employee has accepted an offer by the employer of work for those hours).

Under the proposed changes, a casual employee can take FDV leave during a period that does not include their rostered hours, but the employer is not required to pay them for the non-rostered hours.

When can an employee take leave?

If:

the employee is experiencing FDV; and
they need to do something to deal with its impact; and
it is impractical for them to do that thing outside of their work hours.

A note clarifies that reasons an employee can take FDV leave 'include arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counseling, and attending appointments with medical, financial, or legal professionals.'

How must leave be taken?

Leave may be taken as a single continuous 10 day period or in separate periods of at least one day. The employer and employee can also agree to leave being taken in periods of less than one day.

Where an employee takes a period of FDV leave under the NES, the FDV Bill proposes that the employee is taken not to be on paid personal/carer's leave for that period.

What are the notice and evidence requirements?

An employee must give their employer notice, as soon as practicable (which may be after leave has started), that they are taking leave, including the expected period of leave. An employer can require the employee to provide evidence that would satisfy a reasonable person that the employee has met the eligibility requirements.

What should employers do now?

For most employers, once passed, the key changes will start on 1 February 2023. For small business employers, there is an additional transition period of six months, delaying the start until August 2023.

If passed, as is likely, employers will need to:

Update policies and procedures – while many organizations already offer FDV leave in some form, FDV policies and procedures may need to be updated or for others introduced to reflect the new paid minimum standard (with consultation as appropriate).
Take a close look at any existing Enterprise Agreement FDV provisions – if your organization has a FDV provision under an Enterprise Agreement, consider how it compares to the new minimum standard. If it is detrimental, employers, employees, or employee organizations may apply to have the Fair Work Commission vary the agreement to remove that detriment.
Train key personnel to manage FDV strategy and arrangements – as part of any such training, key personnel will need to understand how to handle sensitive personnel information related to employees taking FDV leave. Administering the leave to comply with the new standard is only part of a range of other practical measures organizations can take to support employees experiencing FDV. Other measures could include, for example, ensuring key personnel know where and how to refer employees for appropriate domestic violence support services, considering flexible work arrangements and office locations where necessary.
Consider how the changes impact reporting requirements – many organizations are required to report on their formal policy and/or strategy to support employees experiencing family and domestic violence, under the Workplace Gender Equality Act 2012 and other reporting regimes.
Use the updated Fair Work Information Statement for new employees once available – once the legislation is passed, the Fair Work Ombudsman will update the Fair Work Information Statement to include the new FDV leave entitlement.

We will continue to monitor the FDV Bill and related developments, along with the Government's broader workplace legislative reform agenda. For completeness, the Fair Work Commission has also flagged that in early August 2022, it will continue examining whether a model paid family and domestic violence leave term should be included in modern awards. The FWC's job may however be done once the FDV Bill is passed.