On 9 November 2022, the Paid FDV Leave Act received Royal Assent and came into force.
The Paid FDV Leave Act will replace an employee’s existing NES entitlement to 5 days’ unpaid family and domestic violence leave in each 12 month period of the employee’s employment, with an entitlement to 10 days’ paid family and domestic violence leave in each 12 month period of the employee’s employment.
All national system employees, including full time, part time, and casual employees, will be entitled to 10 days’ paid family and domestic violence leave in each 12 month period of the employee’s employment.
The entitlement will be available from:
Employees will still be able to access the existing 5 days’ unpaid family and domestic violence leave until the new paid entitlement comes into effect for them. The FDV Leave Act also seeks to extend access to paid family and domestic violence leave to non-national system employees (i.e., generally, public sector employees in each State, and employees in WA employed by a sole trader, partnership or unincorporated entity). This extension would only come into effect if the International Labour Organisation Convention (No. 190) concerning Violence and Harassment is ratified and comes into effect in Australia.
The Paid FDV Leave Act expands the definition of ‘family and domestic violence’ to mean 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:
Employees will be able to access paid family and domestic violence leave where they are:
This could include employees needing to plan for their safety or the safety of a close relative, attending appointments with medical, financial, or legal processionals, accessing police services, or attending court hearings.
Employees are required to give their employer notice of the need to take family and domestic violence leave as soon as practicable and advise their employer of the period or expected period of the leave.
Employers can require an employee to provide evidence that would satisfy a reasonable person of the need to take the leave. This could include for example, documents issued by the police, a court, or family and domestic violence support service.
Employers are required to take reasonable steps to ensure that any evidence received to support a request for family and domestic violence leave remains confidential. Employers are also prohibited from using the information for any purpose other than satisfying themselves that the employee is entitled to family and domestic violence leave, unless:
From 1 February 2023, there will also be amendments to the Fair Work Regulations 2009 introducing rules about how family and domestic violence leave must be recorded on an employee’s payslip, to support the employee’s safety.
Employers will be prohibited from including information on an employee’s payslip that shows:
Employers can record paid family and domestic violence leave in other ways, such as ‘special leave’, ‘miscellaneous leave’, or ‘leave – other’.
The purpose of these amendments is to reduce risks to an employee’s safety when they are accessing family and domestic violence leave.
Family and domestic violence leave does not accrue year on year, but will renew on the
12-month anniversary of an employee’s start date with the employer.
For employees who commence employment after the new provisions come into effect on either 1 February 2023 (for employees of non-small businesses) or 1 August 2023
(for employees of small businesses), they will be entitled to access the full 10 days’ paid leave from the first day of employment with their employer. The 10 days will then renew on the 12-month anniversary of the employee’s start date with the employer.
For employees who are already employed when the new provisions come into effect for them, they will be able to access the full 10 days’ paid leave from either 1 February 2023 (for employees of non-small businesses) or 1 August 2023 (for employees of small businesses). The 10 days will then renew on the 12-month anniversary of the employee’s start date with the employer.
Full time and part time employees are required to be paid at their full rate of pay for the hours they would have worked if they were not on family and domestic violence leave.
An employee’s full rate of pay includes their base rate plus any incentive-based payments or bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts.
Casual employees are required to be paid at their full rate of pay, for the hours they were rostered to work during the period they took family and domestic violence leave.
Employees can take paid domestic and family violence leave during a period of paid annual or personal leave, provided they give their employer the required notice and evidence. In this instance, the employee will no longer be on the other form of leave (and so will have their annual or personal leave re-credited) and will take family and domestic violence leave instead.
The entitlement to paid family and domestic violence leave is a civil remedy provision under the Fair Work Act 2009 (Cth) (FW Act) and failure to comply may give rise to penalties for employers and individuals involved in any contravention.
Additionally, under the general protections provisions of the FW Act, the ability to take family and domestic violence leave is a workplace right, and employers are prohibited from taking adverse action against an employee, for having or exercising that right.
In order to prepare for the new provisions, employers should:
If you have questions or would like more specific information about how the changes to family and domestic violence leave will affect you or your business, please call 1800 867 113, or click here to organise a confidential discussion.
Stephen Schoninger is a Partner and leader of the employment and workplace law practice at Avant Law, based in Sydney. Stephen has over 18 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.
Savanna Russo is an Associate in the employment and workplace law practice at Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising small to medium businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.
Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content. The information in this article is current to 9 January 2023. Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme. © Avant Mutual Group Limited 2023.
Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.
