In October 2022, The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 came into force and has introduced 10 days of paid family and domestic violence (FDV) leave into the National Employment Standards (NES).
The paid leave universally applies to all employees, including casual employees, at the rate of pay the employee would have received had they not taken leave. The entitlement comes into effect from 1 February 2023 for large businesses and on 1 August 2023 for small businesses (less than 15 employees).
This was one of the Labor Government's key federal election promises and also follows the recommendation of the Full Bench of the Fair Work Commission (FWC) to amend the modern awards to include paid FDV leave to address the unacceptable situation that so many Australians continue to face in the 'impossible choice' between their safety and their income.
What exactly are the changes?
The FW Act amendments require employers to provide 10 days of paid FDV leave in a 12-month period to all employees who are experiencing family or domestic violence. The key amendments include:
- the entitlement to paid FDV leave will be available to full-time, part-time and casual employees
- the full entitlement of 10 days will be available upfront, either on commencement of the provisions for existing employees or on commencement of employment for new employees
- employees will access paid FDV leave at their full rate of pay for the hours they would have worked had they not taken the leave (not at their base rate of pay)
- the definition of FDV leave is extended to include conduct of a current or former intimate partner of an employee or a member of an employee's household
- the entitlement to paid FDV leave is extended to non-national system employees, such as some state public sector and local government employees.
The extended definition of FDV in the FW Act has been implemented to recognise that Australians are increasingly living in a more diverse range of non-traditional living situations.
Extension to casual workers
The entitlement covers casual employees, with Parliament noting that there are currently 2.6 million casual employees in Australia. The amendments allow a casual employee access up to 10 days' paid FDV leave, to be paid at the employee's full rate of pay worked out as if the employee had worked the hours in the period for which the employee was rostered.
The words 'hours in the period for which the employee was rostered' include any situation where the employer makes available a list of shifts to be undertaken by casual employees in advance. It also includes when an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours. The offer or acceptance can, but does not need to, be in writing or by phone.
This means a casual employee cannot access paid FDV leave for days they were not rostered or had not agreed to work.
Extension to non-national system employees
The amendments also include complex provisions that extend the FDV leave provisions of the FW Act to apply to state referral employees and non-national system employees, such as some state public sector and local government employees.
Examples of when FDV leave may be accessed include:
- arranging for the safety of the employee or a close relative (including relocation)
- attending court hearings
- accessing police services
- attending counselling
- attending appointments with medical, financial or legal professionals.
The Act aims to promote the protection of children by providing financial support to a parent experiencing FDV to assist them to take steps to deal with that violence. This extends to the protection of children who are of working age and who are experiencing FDV by providing an entitlement for them to take time off work to make arrangements to lessen the impacts of that violence, or prevent future violence, without losing income.
What effect does this have on enterprise agreements?
A new Part 12 will be inserted into Schedule 1 of the FW Act to resolve inconsistencies between the NES entitlement and any existing enterprise agreement.
Part 12 provides that, on application by an employer, employee or employee organisation covered by an enterprise agreement made before 1 February 2023 that includes paid FDV leave, the FWC can consider whether the effect of the terms is detrimental when compared with the FDV leave NES entitlement. If the FWC considers the effect of the enterprise agreement terms are detrimental compared to the NES, the FWC may vary the terms of the agreement to make the agreement consistent with the NES.
What does this mean for employers?
Employers should update their policies, contracts and payroll systems in preparation for the commencement date of 1 February 2023 (or 1 August 2023 for small businesses). Employers with enterprise agreements containing paid FDV leave provisions should also be aware of employees and employee organisations applying to vary terms of the enterprise agreement.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
